2020 FC 968, 2020 FC 968

IMM-4471-19 2020 FC 968 Lasitha Udaya Kumara Senadheerage ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Senadheerage v. Canada (Citizenship and Immigration) Federal Court, Grammond J.—By videoconference (between Ottawa and Toronto), October 5; Ottawa, October 15, 2020.

Citizenship and Immigration — Immigration Practice — Refugee claims —- Corroboration — Judicial review of Immigration and Refugee Board, Refugee Appeal Division (RAD) decision dismissing applicant’s appeal of Refugee Protection Division decision rejecting his claim for asylum — Applicant arrested, questioned, beaten by Sri Lankan police regarding illegal activities of his employer — Family threatened, fleeing to U.S. — Seeking asylum in Canada — RAD finding, inter alia, insufficient evidence that police or businessman’s thugs having any interest in harming applicant — Applicant alleging that RAD erred in finding his story implausible, in rejecting his corroborative evidence, in requiring additional corroboration — Whether RAD erring in its decision — RAD’s analysis with respect to corroboration unreasonable — RAD not explaining basis for its implausibility findings — Those findings amounting to speculation — RAD starting from premise that general requirement for corroboration existing — However, such requirement having to be properly calibrated — One line of cases taking position that corroboration only required where claimant’s credibility in doubt for reasons other than mere lack of corroboration —Other line of cases giving broader scope to requirement for corroboration — Both lines of cases synthesized herein, common ground found between the two — Decision maker can only require corroborative evidence if (1) decision maker clearly sets out independent reason for requiring corroboration; (2) evidence could reasonably be expected to be available and, after being given opportunity to do so, applicant failed to provide reasonable explanation for not obtaining it — Here, RAD reversing two-step approach — Requiring corroboration because of its flawed implausibility findings, not making any explicit negative credibility finding — Application allowed.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Internal Flight Alternative —Immigration and Refugee Board, Refugee Appeal Division (RAD) dismissing applicant’s appeal of Refugee Protection Division decision rejecting applicant’s claim for asylum — In making decision, RAD considering applicant’s internal flight alternative (IFA) — However, RAD confusing issues of IFA, existence of well-founded fear of persecution — Failing to directly address question of whether agents of persecution in Sri Lanka still wanted to harm applicant; if so, whether applicant would be able to protect himself by moving to another part of country — RAD would not have reached same conclusion had error on IFA not been made — Thus, RAD’s decision on basis of IFA finding not sustainable.

This was an application for judicial review of a decision by the Refugee Appeal Division (RAD) of the Immigration and Refugee Board dismissing the applicant’s appeal of a decision by the Refugee Protection Division (RPD) rejecting his claim for asylum. The applicant, a Sri Lankan citizen, was arrested, questioned and beaten by the police in his country regarding the illegal activities of his employer, a businessman closely associated with the government. After his release, his family was threatened by his employer, and the applicant went into hiding. He later left for the United States.

While in the U.S., he learned that the police and the businessman’s thugs had visited his house. He decided to seek asylum in Canada. The RPD found, inter alia , that the applicant had an internal flight alternative (IFA). The RAD found that there was insufficient evidence that either the police or the businessman’s thugs had any remaining interest in harming the applicant. The RAD also confirmed the RPD’s analysis with respect to the IFA. The applicant alleged that the RAD erred in finding his story implausible, in rejecting his corroborative evidence and in requiring additional corroboration.

The main issue was whether the RAD erred in its analysis with respect to corroboration and an internal flight alternative. Held , the application should be allowed. Some aspects of the RAD’s analysis were unreasonable. The RAD did not explain the basis for its implausibility findings, i.e. that there was no more interest in harming the applicant. The findings appeared to be based on the RAD’s own views of what was likely or unlikely. The RAD assumed too many unknown facts and, in doing so, left the realm of reasoning to enter that of speculation.

While the RAD may have formed a view about the police’s or the thugs’ most likely course of action, this was not one of the “clearest of cases” in which it could find that the applicant’s account was implausible. In fact, the RAD’s findings amounted to speculation about what a “reasonable agent of persecution” would do. The Court has repeatedly cautioned against such reasoning. Thus, this aspect of the RAD’s decision was unreasonable.

While there might have been some valid reasons to require corroboration with respect to some issues, the RAD started from the premise that there is a general requirement for corroboration. However, such a requirement must be properly calibrated to avoid putting claimants in an impossible situation. A significant number of decisions take the position that corroboration is only required where the claimant’s credibility is in doubt for reasons other than the mere lack of corroboration. Another line of cases gives a broader scope to the requirement for corroboration.

Both lines of cases were synthesized herein and common ground was found between the two by broadening the categories of cases in which corroboration may be required, while implementing appropriate safeguards. In

summary, a decision maker can only require corroborative evidence if (1) the decision maker clearly sets out an independent reason for requiring corroboration, such as doubts regarding the applicant’s credibility, implausibility of the applicant’s testimony or the fact that a large portion of the claim is based on hearsay; and (2) the evidence could reasonably be expected to be available and, after being given an opportunity to do so, the applicant failed to provide a reasonable explanation for not obtaining it.

Here, the RAD appears to have reversed the two-step approach and focused on the presumptive availability of corroborative evidence as a ground for requiring corroboration. The RAD may have required corroboration because of its flawed implausibility findings instead of a desire to buttress the trustworthiness of hearsay. None of this was made explicit in the decision. The RAD did not make any explicit negative credibility findings.

With respect to an internal flight alternative, when an IFA is used as an alternative ground, care must be taken to separate the IFAanalysis from that of the well-founded fear of persecution. In this case, the RAD confused the two issues, at least in significant part. Themain ground for the IFA finding was the lack of credible, probative evidence that the agents of persecution were seeking the applicantand had retained an interest in harming him; however, that missed the mark.

The RAD had to directly address the question as to whetherthe agents of persecution still wanted to harm the applicant and, if so, whether the applicant would he be able to protect himself bymoving to another part of the country. Although the RAD gave other reasons for its IFA finding, it would not have come to the sameconclusion had it not made this particular error. Thus, the RAD’s decision on the basis of the IFA finding could not be sustained. As several aspects of the RAD’s decision were unreasonable, the matter was sent back for redetermination.

STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(2), 170(g),(h). Refugee Protection Division Rules, SOR/2012-256, r. 11. CASES CITED APPLIED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1. CONSIDERED: Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, 208 F.T.R. 267; Al Dya v. Canada (Citizenship andImmigration), 2020 FC 901; Fatoye v. Canada (Citizenship and Immigration), 2020 FC 456; Ortega Ayala v. Canada (Citizenship andImmigration), 2011 FC 611; Horvath v.

Canada (Citizenship and Immigration), 2018 CF 147; Chen v. Canada (Citizenship andImmigration), 2019 FC 162; Maldonado v. Minister of Employment and Immigration, (FCA), [1980] 2 F.C. 302,(1979), 31 N.R. 34 (C.A.). REFERRED TO: Lawani v. Canada (Citizenship and Immigration), 2018 FC 924; Venegas Beltran v. Canada (Citizenship and Immigration), 2011 FC1475; Reyad Gad v. Canada (Citizenship and Immigration), 2011 FC 303; Soos v. Canada (Citizenship and Immigration), 2019 FC 455;Ndjavera v. Canada (Citizenship and Immigration), 2013 FC 452; Fontenelle v. Canada (Citizenship and Immigration), 2011 FC 1155, 5Imm.

L.R. (4th) 14; Dundar v. Canada (Citizenship and Immigration), 2007 FC 1026; Chekroun v. Canada (Citizenship andImmigration), 2013 FC 737, 436 F.T.R. 1; Ismaili v. Canada (Citizenship and Immigration), 2014 FC 84, 22 Imm. L.R. (4th) 276;McKenzie v. Canada (Citizenship and Immigration), 2019 FC 555; Luo v. Canada (Citizenship and Immigration), 2019 FC 823; Durraniv. Canada (Citizenship and Immigration), 2014 FC 167, 448 F.T.R. 252; Singh v. Canada (Minister of Citizenship and Immigration),2003 FCT 556, 233 F.T.R. 166; Ryan v. Canada (Citizenship and Immigration), 2012 FC 816; Radics v.

Canada (Citizenship andImmigration), 2014 FC 110; Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199, 130 N.R. 236(F.C.A.); Elamin v. Canada (Citizenship and Immigration), 2020 FC 847; Jurado Barillas v. Canada (Citizenship and Immigration),2019 FC 825; Chaudhry v. Canada (Citizenship and Immigration), 2020 FC 902. APPLICATION for judicial review of a decision of the Refugee Appeal Division of the Immigration and Refugee Board (X (Re), ) dismissing the applicant’s appeal of a decision by the Refugee Protection Division rejecting his claim for asylum.Application allowed.

APPEARANCES Barbara Jackman for applicant. Bradley Gotkin for respondent. SOLICITORS OF RECORD Jackman & Associates, Toronto, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by [1] Grammond J.: Mr. Senadheerage seeks judicial review of the dismissal of his claim for asylum. I am granting his application, fortwo inter-related reasons. First, the decision maker found certain parts of his narrative implausible, without providing a firm basis for thisfinding. Second, it found that Mr.

Senadheerage failed to provide corroborative evidence, without explaining why corroboration wasrequired in the circumstances and why such evidence would be reasonably available. [2] In giving my reasons for so concluding, I attempt to synthesize this Court’s case law on the requirement for corroboration. I. Background [3] Mr. Senadheerage is a citizen of Sri Lanka who claimed asylum in Canada, alleging the following facts. He is a civil engineerand worked for some time in another country. Upon returning to Sri Lanka in June 2017, he began employment with a business owned

by a prominent businessman with close connections to the government then in power. [4] He quickly discovered that the business engaged in some illegal activities. In July 2017, he was arrested and questioned by theCriminal Investigation Department (CID) of the Sri Lankan police. He was beaten and held in custody for three days. He was releasedonly after he agreed to speak about the illegal activities in which the business was engaged.

He undertook to report to the CID everymonth. [5] Immediately after his release, thugs in the service of the businessman visited his house, where he lived with his parents, wife andchild. He was absent at that time, but the thugs said to his mother that they would come back for him. Upon learning of this, Mr.Senadheerage went into hiding and arranged for his parents, wife and child to move in with relatives in two different cities. A few dayslater, he left for the United States. [6] While Mr.

Senadheerage was in the United States, he learned that the CID visited his house in August 2017, when he failed toreport to them. He told a friend in Sri Lanka about what had happened to him. That friend then relayed the story of his persecution toopposition politicians, who used it publicly to embarrass the government, as it involved a businessman closely associated with thegovernment. Mr. Senadheerage then learned from another friend that the businessman said that he would kill him if he found him.

InFebruary 2018, he learned that both the CID and the businessman’s thugs visited his empty house, searching for him. At that time, hedecided to make his way to Canada, where he claimed asylum. [7] In a short decision, the Refugee Protection Division (RPD) of the Immigration and Refugee Board (I.R.B.) rejected Mr.Senadheerage’s claim. The RPD held that it was unbelievable that the CID would have acted as it did if it were really looking for Mr.Senadheerage. As to the businessman or his thugs, there was no evidence that they had any interest in harming him. Most importantly,the RPD found that Mr.

Senadheerage has an internal flight alternative (IFA) in the two cities where members of his family haverelocated, essentially because no one had sought to harm them there and objective country information suggested that the police wouldbe unable to find him if he relocated. [8] The Refugee Appeal Division (RAD) of the I.R.B. dismissed Mr. Senadheerage’s appeal [X (Re), ]. Forreasons that I will analyze in more detail below, the RAD found that there was insufficient evidence that either the CID or thebusinessman’s thugs had any remaining interest in harming Mr. Senadheerage.

The RAD also confirmed the RPD’s analysis with respectto the IFA. [9] Mr. Senadheerage now seeks judicial review of the RAD’s decision. II. Analysis [10] On an application for judicial review in immigration and refugee matters, the standard of review is reasonableness: Canada(Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (Vavilov). One aspect of the Vavilov frameworkis of particular relevance to this case. Even though the reviewing court may look to the record to understand the basis for the decision,the decision itself must be justified, not only justifiable.

Thus, it must exhibit a rational chain of analysis that complies with the legalconstraints bearing on the decision maker: Vavilov, at paragraphs 102–107. A. Assessment of the Evidence [11] Mr. Senadheerage challenges the RAD’s assessment of his evidence. He alleges that the RAD erred in finding his storyimplausible, in rejecting his corroborative evidence and in requiring additional corroboration. For the following reasons, I agree that theRAD committed some of these errors.

As a result, the RAD’s decision does not exhibit a rational chain of analysis, which makes itunreasonable according to the Vavilov framework.

(1) Implausibility Findings [12] The RAD’s first ground for finding that Mr. Senadheerage had no well-founded fear of persecution is that both the CID and thebusinessman’s thugs had lost any interest in him. Among the reasons for that conclusion, the RAD stated that if they still had interest inMr. Senadheerage, the CID and the thugs would have looked for members of his family and, in the case of the CID, friends and co-workers. Moreover, the RAD found that it was illogical that the CID would have gone to Mr. Senadheerage’s house in February 2018, asthey would have known that he had left the country.

It also stated that the CID would no longer be interested in Mr. Senadheerage, as hewas no longer employed with the business suspected of illegal activities and could therefore not provide any new information aboutthese illegal activities. [13] These are implausibility findings. In substance, the RAD is saying that the events cannot have happened as recounted by Mr.Senadheerage. [14] This Court, however, has set a high threshold before immigration decision makers can make a finding of implausibility. Such afinding may be made only in the “clearest of cases:” Valtchev v.

Canada (Minister of Citizenship and Immigration), 2001 FCT 776, 208F.T.R. 267 (Valtchev) [at paragraph 7]; see also Lawani v. Canada (Citizenship and Immigration), 2018 FC 924, at paragraph 26. In AlDya v. Canada (Citizenship and Immigration), 2020 FC 901 (Al Dya), my colleague Justice Nicholas McHaffie reviewed the case lawwith respect to this issue since Valtchev was rendered.

He noted that “the unusual or improbable does occur, and that it is unreasonable toreject evidence as not credible simply because the events it describes are unusual:” Al Dya, at paragraph 35. [15] In Valtchev, at paragraph 7, Justice Muldoon explained when implausibility findings may be made: …. plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could

reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner assertedby the claimant. [16] Indeed, in Al Dya, the main basis for the implausibility finding was that the applicant’s statements were contradicted by theNational Documentation Package (NDP). [17] In the present case, the RAD did not explain the basis for its implausibility findings. It did not point to any specific informationin the NDP for Sri Lanka that would contradict Mr. Senadheerage’s account of the events.

The findings appear to be based on the RAD’sown views of what is likely or unlikely. In doing so, however, the RAD did not avert to the distinction between plausibility andlikelihood, which is at the core of cases such as Valtchev and Al Dya. [18] The RAD found the February 2018 visits to Mr. Senadheerage’s empty home implausible. It assumed that the agents ofpersecution would have known, at that time, that he had left the country—the CID because it is a national organization, and the thugsbecause of their close connections with the government.

There is, however, no evidence providing a reasonable basis for an inference inthis regard. Moreover, there is nothing inherently implausible in the CID’s and the thugs’ failure to question Mr. Senadheerage’s familymembers. They may not have known their whereabouts, as they were allegedly in hiding. They may have unsuccessfully attempted tofind them. Lastly, the CID may have had reasons to remain in contact with Mr. Senadheerage despite the fact that he left his job, such asbeing a witness for the eventual prosecution of the businessman.

In short, the RAD assumes too many unknown facts and, in doing so,leaves the realm of reasoning to enter that of speculation. [19] While the RAD may have formed a view about the CID’s or the thugs’ most likely course of action, this is not one of the“clearest of cases” in which it could find that Mr. Senadheerage’s account was implausible. In fact, the RAD’s findings amount tospeculation about what a “reasonable agent of persecution” would do. This Court has repeatedly cautioned against such reasoning:Venegas Beltran v. Canada (Citizenship and Immigration), 2011 FC 1475, at paragraph 8; Reyad Gad v.

Canada (Citizenship andImmigration), 2011 FC 303, at paragraph 11; Soos v. Canada (Citizenship and Immigration), 2019 FC 455, at paragraphs 12–16. [20] Thus, I find that this aspect of the RAD’s decision is unreasonable.

(2) Lack of Detail or Corroboration [21] A second basis for the RAD’s rejection of Mr. Senadheerage’s claim is the vagueness or lack of corroboration of crucial aspectsof the claim. In particular, Mr. Senadheerage failed to provide any documentary evidence supporting his testimony regarding the deaththreats the businessman made against him, which were relayed to him by a co-worker.

Moreover, he failed to provide a letter or anaffidavit from his mother, with whom he still has contact, even though his mother is his only source of information with respect tosignificant events, including the CID’s and the thugs’ visits to the house in 2017 and 2018. Given the lack of such a letter, the RADfound that the February 2018 visits did not occur. [22] In my view, the RAD’s decision is unreasonable in significant respects.

While there might have been some valid reasons torequire corroboration with respect to some issues, the RAD appears to have started from the premise that there is a general requirementfor corroboration. As a result, I am unable to discern a rational chain of reasoning in the decision. To show why this happened, I firstneed to review in some detail the general principles regarding the requirement for corroboration in immigration and refugee cases. Touse Vavilov’s language, I must identify the legal constraints bearing on the decision maker. (

a) Corroboration: General Principles [23] The law of evidence typically does not require testimony to be corroborated by written documents. Only exceptionally is writtenevidence required to prove certain categories of facts. The I.R.B., however, frequently requires asylum claimants to corroborate theirclaim with written evidence. There are good reasons for this. The Canadian government is usually unable to investigate events takingplace in foreign countries. It is difficult to obtain independent verification of the alleged persecution.

Requiring corroboration helpsensure that refugee protection is granted to those who deserve it. [24] Not all elements of a claim for asylum are susceptible of corroboration. As acts of persecution are typically illegal or immoral,one cannot expect agents of persecution to provide written evidence of their deeds. They may actively try to suppress or withhold suchevidence: Ndjavera v. Canada (Citizenship and Immigration), 2013 FC 452 (Ndjavera), at paragraph 7. Third parties who witnessed actsof persecution may put themselves at risk if they provide written statements.

When asylum claimants allege that the police failed toprotect them, it is pointless to require a police report certifying this: Fontenelle v. Canada (Citizenship and Immigration), 2011 FC 1155,5 Imm. L.R. (4th) 14, at paragraphs 46–47. Moreover, asylum seekers may not be able to carry documentary evidence with them whenthey go through “refugee camps, situations in war-torn countries, cases of discrimination and situations in which refugee claimants haveonly a very short time to escape their persecutors:” Fatoye v.

Canada (Citizenship and Immigration), 2020 FC 456 (Fatoye), at paragraph36. [25] Thus, requiring corroboration may be a manner of granting “fair consideration to those who come to Canada claimingpersecution” while “maintain[ing] the integrity of the Canadian refugee protection system,” both of which are purposes of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), subsection 3(2). Such a requirement, however, must be properlycalibrated, to avoid putting claimants in an impossible situation. This calibration has proven to be a difficult exercise.

In the followingparagraphs, I will attempt to provide some clarity by synthesizing this Court’s case law on the issue. [26] A significant number of decisions take the position that corroboration is only required where the claimant’s credibility is in doubtfor reasons other than the mere lack of corroboration: Dundar v. Canada (Citizenship and Immigration), 2007 FC 1026, at paragraph 22;Ortega Ayala v. Canada (Citizenship and Immigration), 2011 FC 611 (Ortega Ayala), at paragraphs 19–21; Ndjavera, at paragraph 6;Chekroun v.

Canada (Citizenship and Immigration), 2013 FC 737, 436 F.T.R. 1 (Chekroun), at paragraphs 62–65; Ismaili v. Canada(Citizenship and Immigration), 2014 FC 84, 22 Imm. L.R. (4th) 276, at paragraphs 36, 43 and 56; Horvath v. Canada (Citizenship andImmigration), 2018 CF 147 , 2018 FC 147 (Horvath), at paragraph 24; McKenzie v. Canada (Citizenship and Immigration),

2019 FC 555, at paragraphs 54–55. Reasons for doubting credibility and requiring corroboration may include contradictions in theclaimant’s testimony before the RPD or the implausibility of the alleged facts. Thus, as my colleague Justice John Norris stated, “Thereis no general requirement for corroboration and a panel errs if it makes an adverse credibility finding on the basis of the absence ofcorroborative evidence alone”: Chen v. Canada (Citizenship and Immigration), 2019 FC 162, at paragraph 28.

In other words, lack ofcorroboration must not become the “seed of incredibility”: Ortega Ayala, at paragraph 20. [27] The absence of a general requirement for corroboration is usually considered a corollary of the well-known presumption oftruthfulness established by the Federal Court of Appeal in Maldonado v.

Minister of Employment and Immigration, (FCA), [1980] 2 F.C. 302, [Maldonado], at page 305, (1979), 31 N.R. 34 (C.A.): “When an applicant swears to the truth of certainallegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness” [footnoteomitted]. Requiring corroboration in the absence of a pre-existing “reason to doubt” would effectively reverse the Maldonadopresumption. See, for example, Luo v. Canada (Citizenship and Immigration), 2019 FC 823, at paragraphs 19–20; Durrani v.

Canada(Citizenship and Immigration), 2014 FC 167, 448 F.T.R. 252, at paragraph 6; Ortega Ayala, at paragraph 21; Chekroun, at paragraph 65. [28] Moreover, the I.R.B. may dismiss a claim for lack of corroboration only if it would have been reasonable in the circumstances torequire the claimant to obtain corroborative evidence. Thus, the corroboration analysis is a two-step process. First, one must inquirewhether a shortcoming in the evidence triggers a requirement for corroboration.

Second, one must ask whether the corroborativeevidence was reasonably available or whether the claimant provided a satisfactory explanation for its absence.

These two steps areapparent in the following excerpt from Horvath, at paragraph 24: Corroborative evidence was only required if the RAD had (1) reason to doubt the Applicants’ claim and (2) the corroboratingevidence could reasonably be expected to be available …. [29] There is, however, another line of cases giving a broader scope to the requirement for corroboration: see, for example, Singh v.Canada (Minister of Citizenship and Immigration), 2003 FCT 556, 233 F.T.R. 166, at paragraph 9; Ryan v. Canada (Citizenship andImmigration), 2012 FC 816, at paragraphs 19–20; Radics v.

Canada (Citizenship and Immigration), 2014 FC 110, at paragraphs 30–32;Luo, at paragraph 21, and the cases cited therein. It is often framed as an exception to the rule that, absent credibility concerns, nocorroboration is needed.

It is nicely summarized in Fatoye, at paragraph 37: …. when corroborative evidence should reasonably be available to establish the essential elements of a refugee protection claim andthere is no reasonable explanation for its absence, the administrative decision maker may draw a negative inference with respect tocredibility based on the claimant’s lack of effort to obtain this evidence…. [30] Such a general requirement for corroboration is usually grounded in rule 11 of the Refugee Protection Division Rules, SOR/2012-256, which reads as follows: Documents 11 The claimant must provide acceptable documents establishing their identity and other elements of the claim.

A claimant who does notprovide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them. [31] In effect, this line of cases takes the two-step approach outlined above and reverses the order of the questions. Whethercorroborative evidence is reasonably available becomes the trigger for the requirement for corroboration, instead of an excuse for notfulfilling a requirement triggered for independent reasons. Thus, under this approach, there is a risk that corroboration becomes an open-ended requirement.

If this happens, little would remain of the presumption of truthfulness established by the Federal Court of Appeal inMaldonado and decision makers would be able to dismiss a claim by effectively saying “I don’t believe you” without any specificreason. In other words, what is branded as an exception would effectively engulf the rule that there is no general requirement forcorroboration. [32] Yet, there is a kernel of truth in this second line of cases. Rule 11 establishes a requirement for documentary evidence and cannotsimply be ignored.

If the I.R.B. is prevented from requiring corroboration unless there is a doubt concerning the claimant’s credibility, aclaim could be accepted in the absence of any documentary foundation. Ensuring the integrity of the immigration system may requirecorroboration in a broader range of cases than those where credibility is already affected. Balancing the goals of the Act invites us to findcommon ground between the two lines of cases.

In my view, this can be done through broadening the categories of cases in whichcorroboration may be required, while implementing appropriate safeguards. [33] The first of these safeguards relates to substance. The two-step approach outlined above is sound and well established. It shouldnot be reversed. That means that a decision maker must always identify an independent ground for requiring corroboration. However, therelevant grounds are not restricted to the traditional categories of credibility or implausibility. I do not intend to give a closed list of whatthese grounds might be.

Later in these reasons, I suggest that the fact that a large portion of the claim is based on hearsay may be a validreason. [34] The second safeguard relates to reasons. Decision makers must explain why they require corroboration. Where they do so ongrounds of credibility or implausibility, it goes without saying that they must give reasons for these findings: Hilo v. Canada (Minister ofEmployment and Immigration) (1991), 15 Imm. L. R. (2d) 199, 130 N.R. 236 (F.C.A.). But this is true as well where other grounds areinvoked.

The duty to give reasons prevents the requirement for corroboration from becoming a disguised expression of unsupporteddisbelief. [35] The third safeguard relates to process. While rule 11 puts the burden on the claimant to provide “acceptable documents” orexplain why they were not available, it does not define what these documents are and what “other elements of the claim” need to besupported. Yet, as this Court has frequently noted, there is no general requirement for corroboration. As a result, claimants may not knowin advance the elements for which the decision maker will require corroboration.

Requiring corroboration without prior notice may givethe impression of moving the goalposts. Thus, a decision maker who is of the view that corroboration is required in respect of a specificissue should put the matter to the claimant at the hearing. This will provide the claimant a genuine opportunity to explain why

documentary evidence was not reasonably available. See Elamin v. Canada (Citizenship and Immigration) , 2020 FC 847 , at paragraph 19 ; see also, by analogy, Jurado Barillas v. Canada (Citizenship and Immigration) , 2019 FC 825 . [ 36 ] To summarize, a decision maker can only require corroborative evidence if: 1. The decision maker clearly sets out an independent reason for requiring corroboration, such as doubts regarding the applicant’s credibility, implausibility of the applicant’s testimony or the fact that a large portion of the claim is based on hearsay; 2.

The evidence could reasonably be expected to be available and, after being given an opportunity to do so, the applicant failed to provide a reasonable explanation for not obtaining it. (

b) Application to the Facts [ 37 ] Applying this framework, I find that some aspects of the RAD’s analysis with respect to corroboration are unreasonable. [ 38 ] The RAD gave very succinct reasons for requiring corroboration of the death threats made by the businessman and relayed to Mr. Senadheerage by a co-worker, simply noting that this was “important information”. In my view, a more fulsome explanation was needed to justify a need for corroboration. There is no discussion of potential explanations for the lack of corroborative documents, even though one can easily understand that the co-worker would be reluctant to sign a document attesting to the death threats. A detailed

summary of the RPD hearing prepared for Mr. Senadheerage’s counsel does not show that he was questioned on this matter. Thus, it was unreasonable for the RAD to require corroboration with respect to the death threats. [ 39 ] The RAD also noted the lack of corroboration of the CID’s and the thugs’ visits to Mr. Senadheerage’s house at various moments. It stated [at paragraph 17] that “it is reasonable to expect some sort of corroboration of these events given that they go to the heart of the claim and because he has provided other supporting documentation.” Elsewhere in the decision, the RAD notes that Mr.

Senadheerage remains in contact with his mother and could have obtained a letter from her. [ 40 ] In making these remarks, the RAD appears to have reversed the two-step approach outlined above and focused on the presumptive availability of corroborative evidence as a ground for requiring corroboration. Moreover, Mr. Senadheerage was not questioned on these issues at the hearing before the RPD and was not afforded an opportunity to explain why he could not obtain, for example, a statement from his mother. [ 41 ] Nevertheless, one understands that the RAD was concerned with the fact that Mr.

Senadheerage did not himself witness any of the events allegedly taking place after the CID released him. As a result, large parts of the claim were based only on hearsay. Pursuant to paragraphs 170 (

g) and (

h) of the Act , hearsay is admissible before the RPD, provided it is considered “credible or trustworthy.” Ensuring the trustworthiness of hearsay may be valid grounds for requiring corroboration. [ 42 ] I am concerned, however, that the RAD may have required corroboration because of its flawed implausibility findings, instead of a desire to buttress the trustworthiness of hearsay. None of this is made explicit in the decision. The RAD did not make any explicit negative credibility findings. It did not follow the legal framework outlined above.

As a result, its decision “fail[s] to reveal a rational chain of analysis”: Vavilov , at paragraph 103 . [ 43 ] I must also say that the fact that Mr. Senadheerage provided some documentary evidence is not grounds for requiring additional corroboration. The availability of some evidence does not prove the availability of other evidence.

(3) Rejection of Corroborating Evidence [ 44 ] Mr. Senadheerage also challenges the RAD’s rejection of a newspaper

article and a lawyer’s letter corroborating some of his allegations. I am unable to agree with him. The RAD analyzed that evidence and provided reasons for giving it little weight. In substance, the RAD noted that the evidence was vague as to the events involving Mr. Senadheerage and did not appear to match his narrative. Having reviewed the evidence, I find that the RAD’s conclusions were not unreasonable. [ 45 ] There is, however, a puzzling omission in the RAD’s decision. No mention is made of a letter from a friend to whom Mr. Senadheerage revealed his story.

The friend explains that he relayed the information to members of the opposition, who used it to slander the government. Mr. Senadheerage explicitly asked the RAD to consider this letter. The RAD should have responded to this argument. Its failure to do so may not, alone, have rendered its decision unreasonable. Nonetheless, it contributes to the decision’s overall unreasonableness.

(4) Summary [ 46 ] To summarize, the RAD’s analysis of the evidence is flawed in many respects. The RAD does not provide a reasonable explanation for its implausibility findings. While some aspects of the case might justify a requirement for corroboration, the RAD’s analysis overlooks crucial issues and does not evince a rational chain of analysis. I am unable to say what decision the RAD would have reached had it not made those errors. As a result, I must send the case back for redetermination. B.

Internal Flight Alternative [ 47 ] The Minister, however, argues that the RAD’s IFA finding stands independently of its conclusion regarding Mr. Senadheerage’s lack of a well-founded fear of persecution. Thus, according to the Minister, the rejection of Mr. Senadheerage’s claim for asylum was inevitable and the decision should be confirmed on that sole basis. I disagree. [ 48 ] In many cases, the I.R.B. uses an IFA as the main ground for dismissing a claim. In other cases, such as this one, it is an

alternative ground. This means that if, contrary to the I.R.B.’s findings, the claimant really has a well-founded fear of persecution, he or she may escape persecution by moving to a different part of the country. [ 49 ] When an IFA is used as an alternative ground, care must be taken to separate the IFA analysis from that of the well-founded fear of persecution: see, by analogy, Chaudhry v. Canada (Citizenship and Immigration) , 2020 FC 902 , at paragraph 21 . Indeed, at the IFA stage, the decision maker must assume that his or her decision regarding persecution is wrong.

One must assume that the claimant has a well-founded fear of persecution in one part of the country and proceed to determine if that fear extends to the whole country. If the decision maker fails to make the distinction, the IFA analysis becomes a mere restatement of the findings with respect to persecution. [ 50 ] In this case, it appears that the RAD confused the two issues, at least in significant part.

The main ground for the IFA finding is “the lack of credible, probative evidence that the agents of persecution are actively seeking him out and have retained an interest in harming him” [ X (Re) , at paragraph 27] . But that misses the mark. The RAD had to assume the opposite. The real question is, what if the agents of persecution still want to harm Mr. Senadheerage? Would he be able to protect himself by moving to another part of the country? The RAD does not directly address that question. [ 51 ] The RAD gave other reasons for its IFA finding.

I am, however, unable to say that it would have come to the same conclusion had it not made the error identified above. Thus, I cannot sustain the decision on the basis of the IFA finding. III. Conclusion [ 52 ] As several aspects of the RAD’s decision are unreasonable, the application for judicial review will be allowed and the matter will be sent back for redetermination. JUDGMENT in IMM-4471-19 THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed. 2. The matter is returned to the Refugee Appeal Division for redetermination. 3. No question is certified.