TB5-04811

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 : TB5-04811 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX)XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 26, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Orr Kolesnik 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 (Appellant), a citizen of the Philippines, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that he is a Convention refugee or a person in need of protection, or refer the matter back to the RPD for re-determination. The Appellant has not submitted new evidence in support of his appeal. The Appellant does not request that he be granted an oral hearing before the RAD. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that he fears XXXX XXXX, a woman who loaned him money to come to Canada. He fears she could harm him upon his return because he has failed to repay the 500,000 pesos plus interest that he owes her. [4] The Appellant came to Canada in XXXX of 2008 using a travel document that was not his own and he remained in Canada without legal status since then. The Appellant made a refugee claim in March 2015 after he was arrested and detained by Canada Border Services Agency (CBSA) officials. [5] The Appellant's refugee claim was heard on April 10, 2015. An oral decision was issued on that date. The RPD rejected the claim, finding that the Appellant was neither a Convention refugee nor a person in need of protection. RPD Findings [6] The RPD in its Reasons found: * The Appellant has no nexus to the Convention refugee grounds under Section 96 of the Immigration and Refugee Protection Act (IRPA)1 * The Appellant did not establish an objective basis for his claim under Section 97 of the IRPA. * The Appellant's delay in making a refugee claim demonstrates a lack of subjective fear and seriously undermines the credibility of his allegations. [7] The Appellant submits the following issues: * The RPD mischaracterized the identity of the agent of harm and erred in assessing the risk faced by the Appellant. * The RPD erred in its interpretation of the delay and the Appellant's explanation for the delay. ROLE OF THE RAD [8] The RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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". [9] 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. ANALYSIS OF THE MERITS OF THE APPEAL Uncontested Credibility Findings [10] The RAD notes that the RPD made adverse credibility findings in relation to the Appellant's testimony concerning his failure to consider approaching the police for protection in the Philippines. In addition the RPD found the Appellant's seven year delay in making a refugee claim demonstrated a lack of subjective fear and seriously undermined the credibility of his allegations of harm. The RAD has conducted its own assessment of the record and agrees with these credibility findings. The RAD finds that the failure to contact the police and the seven year delay in making a claim for refugee protection undermine the Appellant's credibility and his allegation that his life is at risk in the Philippines. [11] The RPD found the Appellant had borrowed money from a woman (the agent of harm) in the Philippines who was a friend of the family. The Appellant had not paid the money he owed to this individual. The RPD found that this woman had not threatened him and that his fear of her was purely speculative. The Appellant submits that the RPD was aware that this individual was in reality a loan shark and that the RPD has erred in fact by mischaracterizing the identity of this individual. The RAD is not persuaded by the argument of the Appellant. [12] The RAD has reviewed the audio recording of the hearing and notes the Appellant's testimony describing the relationship to the individual he borrowed money from in the Philippines in 2008 was vague. He clearly stated she was linked to him through an association with his father. Later the Appellant during questioning by his counsel was prompted for further description of this individual. He testified that he had provided a guarantor for the loan (another friend of his father) and all he knew was that the individual who loaned the money XXXX XXXX XXXX XXXX did not operate a business, "she just loans people money". He further testified that he was to pay interest on the loan. [13] The RAD in its review of the record finds the description of the agent of harm provided by the Appellant is not clear. He is definitive that the individual is an associate of his father and that the arrangement for the loan was made by his father. The Appellant was asked if he had any documentation to support the existence of the loan. He explained that his father had passed away in 2010 and he (the Appellant) had no documents. [14] The RAD finds in its review of the evidence there was no persuasive evidence that the woman who loaned the money was a loan shark. The RAD notes the Appellant was asked if there were any other reasons he feared the agent of persecution and he testified, "No, it is all about the money". The RAD finds on a balance of probabilities, that the agent of harm is nothing more than a family acquaintance to whom the Appellant owes money. The RAD further finds the woman has not directly threatened the Appellant and his fear of her is purely speculative. The RAD determines in the circumstances of this claim there is no nexus to one of the Convention grounds. [15] There is insufficient evidence to find on a balance of probabilities, that the Appellant would face a risk to his life or of cruel and unusual treatment or punishment or a danger of torture if he were to return to the Philippines. As a result this claim must fail under Section 96 of Immigration and Refugee Protection Act. [16] The RAD has considered if it were to accept the Appellant's submission that the agent of persecution was a loan shark that the decision in this claim would remain the same. The RAD notes that under section 96 of the IRPA, the determinative issue in this analysis is nexus; that is whether the harm feared is on account of any of the listed Convention grounds. The Appellant, in the written Basis of Claim (BoC) form narrative, and indeed, in oral testimony, did not identify any additional agent of persecution except the individual he borrowed money from. [17] The Appellant's submission in his memorandum suggests this individual is involved in criminal activity. The Federal Court has held that victims of crime, corruption3 or vendettas4 generally fail to establish any link between their fear of persecution and one of the Convention grounds and the Immigration and Refugee Board (the Board) has been upheld in its finding of lack of nexus, where the claimant was a target of any personal vendetta5 or where the claimant was a victim of crime.6 The RAD finds the Appellant's fear is as a potential victim of crime, which has no link to the Convention grounds and as a result the claim must fail under section 96 of the IRPA. [18] The question asked under section 97 of the IRPA, is whether the claimant is a person in need of protection. The words of section 97 of the IRPA, in particular subsection 97(1)(b), are relevant in this instance. [19] Subsection 97(1) of the IRPA reads: A person in need of protection is a person in Canada whose removal to their country or countries of nationality or if they do not have a country of nationality, their country of former habitual residence would subject them personally. (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture, or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if, (i) the person is unable or, because of that risk, unwilling to avail himself of the protection of that country, (ii) the risk would be faced by the person in every part of the country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to local sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health of medical care. [20] The Appellant testified that he feared XXXX XXXX because of "what she might do to me". He further stated that she had contacted his children in the Philippines by telephone to ask about payments. His subsequent testimony indicated the agent of persecution had taken no further action against the Appellant's children. Her calls were always made by telephone and there had been no other personal contact. The Appellant related in his testimony that his children told him XXXX XXXX stated, "She was not sure how to deal with their father". [21] The RAD finds in its review of the record that the Appellant's fear is based on speculation about what the comments of XXXX XXXX mean. The RAD notes the Appellant has received no direct personal threats, nor was any testimony adduced to indicate what harm the Appellant might face upon return. The RAD finds the Appellant has not established an objective basis for his claim. The RAD further finds there is insufficient persuasive evidence to find that the Appellant faces a risk to his life or of cruel and unusual treatment or punishment or a danger of torture if he were to return to the Philippines. [22] The RAD has reviewed the evidence and considered the personal circumstances of the Appellant and finds that the Appellant is not a person in need of protection under s. 97 of the IRPA. CONCLUSION [23] For the reasons set out above, the RAD, having reviewed the evidence, agrees with the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [24] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "Robert Bebbington" Robert Bebbington August 26, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1) (a) and 97(1)(b). 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799, paras 54 and 55. 3 Leon, Johnny Edgar Orellana v. M.C.I. (F.C.T.D., no. IMM-3520-94), Jerome, September 19, 1995; Calero, Fernando Alejandro (Alejandeo) v. M.E.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994; Vargas, Maria Cecilla Giraldo v. M.E.I. (F.C.T.D., no. T-1301-92), Wetston, May 25, 1994. 4Marincas, Dan v. M.E.I. (F.C.T.D., no. IMM-5737-93), Tremblay-Lamer, August 23, 1994; De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D.); Xheko, Aida Siri v. M.C.I. (F.C.T.D., no. IMM-4281-97), Gibson, August 28, 1998. 5 Rivera, Omar Martin Farro v. M.C.I. (F.C.T.D., no. IMM-572-98), Tremblay-Lamer, February 22, 1999. 6 Bacchus, Amit v. M.C.I. (F.C., no. IMM-4679-03), Mosley, June 8, 2004, 2004 FC 821. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04811