TB8-12435

RAD File / Dossier de la SAR : TB8-12435 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision July 27, 2020 Date de la décision Panel Kim Polowek Tribunal Counsel for the person who is the subject of the appeal Charles Amissah-Ocran Barrister and Solicitor 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] I dismiss this appeal. XXXX XXXX (Appellant) is a citizen of the Philippines who is appealing a decision of the Refugee Protection Division (RPD) denying his claim for asylum on May 8, 2018 on the basis of credibility, lack of an objective basis for his claim and lack of subjective fear. [2] The Appellant was born to a XXXX mother and an XXXX father. He reports experiencing bullying as a child and discrimination as an adult because of his ethnicities. He fears that if returned to the Philippines, he would face an extrajudicial killing due to the war on drugs campaign, or would be targeted for persecution given his unique appearance and the length of time he has spent abroad. [3] On appeal, it is submitted that the RPD erred when it failed to consider that random extrajudicial killings by vigilantes are directed towards people who appear different like the Appellant, that living abroad for many years accentuates the Appellant's physical different appearance and makes him an easy target for robbery, and that it erred when it applied Canadian standards to a developing country. Lastly, the RPD failed to consider that the Appellant's delay in seeking refugee protection was due to the evolution of his recollection of all the discrimination he faced and the dangerous government led by President Duterte. [4] I find that the RPD was correct to find that the Appellant's claim for asylum lacks an objective basis, that he has demonstrated a lack of subjective fear, and that there are credibility concerns with his allegations that he suffered persecution in the Philippines as an adult due to his ethnicity. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention1 refugee nor a person in need of protection. ANALYSIS [6] My role is to look at all the evidence and decide if the RPD made the correct decision.2 Risk Related to Race and Ethnicity Not Established [7] The RPD found that there was insufficient evidence to establish that the Appellant would incur forward-looking risk of persecution because of his XXXX and XXXX ethnicities, and noted the objective evidence which indicated little evidence of widespread discrimination and persecution based on race or ethnicity in the Philippines. [8] On appeal, it is argued that this RPD erred because the Appellant did not base his application for refugee protection on a claim of discrimination based on race, but that due to his race, he would be easily identifiable as being different from the average Filipino. It is further submitted that he has been subjected to bullying and other acts of intimidation in the past and that Manila is a hotspot for robbery and vigilantism. As these acts of violence and vigilantism are mostly carried out by private gangs, and since they are extremely random, it is very difficult to protect against this risk. [9] I am not persuaded by the Appellant's argument and find that the RPD correctly characterized and assessed forward-looking risk to the Appellant flowing from his unique ethnicity/race, as well as considered the Appellant's past incidents of bullying and intimidation. [10] I find that the RPD was correct to find that the Appellant did not establish that risk, which might flow from any future discrimination, would rise to the level to constitute a serious possibility of persecutory discrimination as defined by the United Nations High Commissioner for Refugees' Handbook.3 While I accept, as did the RPD, that the Appellant has experienced some discrimination or bullying,4 not all experiences of discrimination amount to persecution. Persecution consists of a sustained or systemic violation of basic human rights demonstrative of a failure of state protection. [11] For discrimination against a person to amount to persecution, it must be serious and occur with repetition and must have consequences of a prejudicial nature for the person, such as when an individual is denied a core human right, or such as the right to practice religion or to earn a livelihood.5 I observe, as did the RPD, that the evidence indicates that the Appellant lived well in the Philippines in that he completed post-secondary education, worked in professional occupations, travelled extensively and studied abroad. All of these factors indicate that he and his family were not prohibited from earning a living, accessing education, or enjoying a higher quality of life because of their minority ethnicities. Contrary to the assertion of the Appellant that RPD placed exaggerated emphasis on the Appellant's ability to travel, I find no error in the RPD considering this as one factor which demonstrated that the Appellant and his family were not deprived of their ability to earn a living due to their ethnicity. Forward Looking Risk Arising from Antidrug Campaign in the Philippines and Living Abroad Not Established [12] The RPD found that the Appellant's concern that he was at heightened risk of being targeted for an extrajudicial killing occurring due to President Duterte's war on drugs or because of the time he had spent living abroad had no objective basis. [13] On appeal, it is argued that RPD erred as the RPD failed to consider that the Appellant is more at risk as the extrajudicial killings and criminality are not only random, but targeted towards anyone who appears slightly different than the average Filipino. Thus, because the Appellant looks different, he will be more likely targeted for harm. As well, the fact that he has lived abroad for many years will make him an easy target for robbers who will see him as a wealthy target. [14] I find that the RPD already considered the forward-looking risk to the Appellant on these grounds and found that no objective basis existed for these fears. I see no error with the analysis of the RPD and adopt their reasons at paragraph [11] to paragraph [16]6 as my own. [15] Further, as noted by the RPD and as testified to by the Appellant, he is not a drug user and has never been involved in using drugs, which would be factors that would elevate his risk. As well, while the Appellant may fear that his appearance elevates his risk of being attacked or robbed, I find that this fear is speculative and has no objective basis. Furthermore, any risk he may face relating to criminal activity is a generalized risk faced by all citizens. The RPD Did Not Err by Trivializing the Appellant's Claim [16] The RPD found that there was insufficient evidence to establish that the Appellant's father was kidnapped in the Philippines due to his race and ethnicity, and further, insufficient evidence to find that the Appellant would face a future risk of kidnapping for the same reason. [17] On appeal, it is argued that the RPD trivialized the Appellant's claim regarding his father's kidnapping. I have reviewed the RPD decision and see no evidence of this. [18] The RPD considered this element of the Appellant's claim but found that there was insufficient evidence to establish that his father was kidnapped due to his ethnicity. As observed by the RPD, the Appellant's knowledge of the event was limited and there was no police report made about the incident. While the Appellant testified at his hearing that his mother told him his father had been kidnapped, I observe that the Appellant's Basis of Claim (BOC) form states, "My mother, who is XXXX, never told me exactly what happened to my father, but I always heard stories of how he was taken or kidnapped and held for ransom."7 I agree with the RPD that a statement made by the Appellant's mother about his father's absence or the Appellant's having heard stories or rumours[Sm1] about what happened to his father is insufficient to establish, on a balance of probabilities, that his father was kidnapped due to his ethnicity and that the Appellant would suffer the same fate so many years later. Omissions from BOC Form Undermine Credibility [19] The RPD found that the omission of racist incidents reportedly suffered in the Philippines during his adult life from his BOC form undermined his credibility. The RPD found that his explanation for the omission - namely that he had left these incidents out as he had tried to put these memories behind him, but as time went on he remembered more details - was not reasonable. The RPD observed that the Appellant was represented by Counsel when he prepared his BOC form, and given the length of time he had been in Canada, he had ample time to reflect on his experiences and set them out in his BOC form. [20] On appeal, it is submitted that the RPD erred when it found the Appellant's explanation for the omissions was unreasonable. It is argued that it was the very pointed questions of the officer during the hearing that helped him recall from his memory the various unpleasant incidents which he had suppressed and had tried to forget for a very long time. [21] I am not persuaded by the Appellant's argument on appeal. The Appellant is not unsophisticated. He is well educated and has held work in a professional capacity. There is no evidence before me, such as psychological or psychiatric evidence, which would account for why the Appellant failed to include details central to his claim that he suffered persecution and discrimination during his adult years in the Philippines. I agree with the RPD that the Appellant's omission of the racist incidents that he experienced as an adult undermines the credibility of his allegation that he experienced racism or discrimination in his adulthood. Subjective Fear Not Established Given Failure to Claim Asylum [22] The RPD found that the Appellant's failure to claim asylum during prior trips to the United States and Canada, and his return to the Philippines on several occasions, undermined the credibility of his claim that he had experienced life-long discrimination and persecution based on ethnicity in the Philippines. [23] On appeal, it is argued that the RPD erred in finding a lack of subjective fear, as his decision to seek refugee status has evolved over time due to his recollections and heightened in severity when President Duterte came to power. [24] I find no error in the RPD's finding that the Appellant's delay in claiming asylum and returning to the Philippines is behaviour inconsistent with the Appellant's claim that he has been persecuted since childhood and possesses forward-looking fear. The most significant incidents outlined in the Appellant's BOC form are reported to have occurred in his childhood and as such, it would be more likely than not that the Appellant would claim asylum at the earliest opportunity. This is not the evidence before me. I see no error in the RPD's analysis of the Appellant's lack of subjective fear and adopt their reasons at paragraph [29] to paragraph [32]8 as my own. [25] Overall, I find that the RPD was correct to find that the Appellant did not present sufficient reliable and credible evidence to establish a serious possibility of persecution or Section 97 Harm9 should he return to the Philippines. CONCLUSION [26] I dismiss this appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Kim Polowek Kim Polowek July 27, 2020 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 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 3 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979, re-edited, Geneva, January 1992). 4 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 20. 5 Noel v. Canada (Citizenship and Immigration), 2018 FC 1062, at para. 29. 6 Exhibit RPD-1, RPD Record, RPD Reasons, at paras. 11-16. 7 Exhibit RPD-1, RPD Record, Basis of Claim form, at p. 14. 8 Exhibit RPD-1, RPD Record, RPD Reasons, at paras. 29-32. 9 Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 97. [Sm1]Hi Kim, if something is in quotations, I have to cite it, so could you please let me know where this is sourced from? ?? --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-12435 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