TB7-02201

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 : TB7-02201 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 21, 2017 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 XXXX (the "Appellant"), a citizen of Pakistan and Belgium, is appealing the decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. The Appellant is asking the Refugee Appeal Division (RAD) to substitute the RPD's decision with a positive determination. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. Background [3] The Appellant's claim for refugee protection was denied in a decision of January 12, 2017. A Notice of Appeal was received by the RAD on February 3, 2017, and the Appellant's Record was subsequently received on June 1, 2017. An application for extension of time to perfect an appeal had been allowed by the Division because the Appellant had demonstrated an ongoing intent to appeal the RPD decision, because there was no prejudice to the other parties in allowing the extension and because the Appellant is self-represented. The Appellant fears persecution by his former in-laws in Belgium. Appellant's Submissions [4] In his memorandum, the Appellant writes the reasons for which he fears returning to Belgium. He makes no reference to any errors made by the RPD and does not tender new evidence. RPD's DECISION [5] In its decision, the RPD assessed the claim against Belgium. The determinative issue in the claim was state protection. Having found that the Appellant's claim did not have a nexus to the Convention refugee definition found in section 96 of the IRPA, the RPD considered the claim within the framework of section 97. The RPD's decision finds that the Appellant does not allege persecution by state officials as provided for in paragraph 97(1)(a) nor does the evidence indicate that the Appellant would face a risk to his life or a risk of cruel and unusual treatment or punishment as outlined under paragraph 97(1)(b). RAD'S FINDINGS [6] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness, as per Huruglica.1 In assessing issues involving credibility of oral testimony, I may apply the RAD's modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage in making a particular finding, as per the decision in X (Re), 2017 CanLII 33034 (CA IRB). [7] RAD Rule 3 instructs the appellant on how to perfect their appeal. The memorandum forms part of the appellant's record, and its requirements are set out in RAD Rule 3(3)(g): 3(3)(g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant, (iv) the decision the appellant wants the Division to make, and (v) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held. [8] Having reviewed all of the evidence, including the documentary evidence on state protection in Belgium, and having listened to an audio recording of the RPD's hearing, the RAD finds that there are no material errors in the RPD's decision. The RPD has correctly applied the state protection test to the facts of this case. The determinative issue is state protection in Belgium. The RPD found that the Appellant had failed to rebut the presumption of state protection with clear and convincing evidence. [9] Due to the lack of submissions to address specific errors made by the RPD, and the lack of references to the location of the errors in the RPD's decision and / or the audio recording of the hearing, the RAD has no onus to go any further. The RAD acknowledges that this is a self-represented appellant. However, there are resources available to self-represented appellants to make and prepare their appeals: bi-weekly information sessions on how to appeal to the RAD, and specifically how to perfect an appeal to the RAD, an on-line Appellant's Record template that sets out all the information that must be provided on appeal, and the Appellant's Guide, which can be found in 16 different languages on the RAD's webpage. A lack of compliance with RAD Rule 3(3)(g) leaves the RAD in a position that it must 'guess' at the potential errors that the RPD may have committed. As stated in Dhillon, "It is not the RAD's function to supplement the weaknesses of an appeal before it, or, for that matter, of the refugee protection claim presented in the first place. It is also not its role to come up with new ideas that might assist appellants in succeeding with their appeal and, ultimately, their refugee claim."2 Justice Gleeson remarks in obiter in Ghauri that "it is the appellant's responsibility, not the RAD's, to 'establish that the RPD erred in a way that justifies the interventions of the RAD'."3 The court concluded that "appellants before the RAD that fail to specify where and how the RPD erred do so at their own peril."4 Furthermore, Fothergill J. states in Murugesu, "It is not the RAD's function to supplement the weaknesses of an appeal before it"5 and in Liu, the Federal Court states, "Rule 3(3)(g) of the Refugee Appeal Division Rules, SOR/2012-257 places the onus on an appellant to identify in his or her submissions to the RAD the errors that form the grounds of appeal, in addition to the location of the errors in the RPD's decision."6 [10] In the more recent case law, the Courts reiterate the lack of obligation on the part of the RAD to seek out errors made by the RPD. As stated recently by Crampton C. J. in Dahal with respect to RAD Rule 3(3)(g)(i) and (ii): In my view, this makes it clear that the RAD is required to focus on the specific errors that an appellant has alleged have been made by the RPD.7 [36] ... In essence, what the RAD did was to briefly review the full record before the RPD, to ensure that it did not make any errors that were not identified by the Applicants. [37] By simply satisfying itself that no such additional errors were made, the RAD's decision should not become vulnerable to being set aside on judicial review, based solely on its general concurrence with findings made by the RPD in respect of matters that were not raised on appeal by the Applicants. In my view, this would largely vitiate the purpose of Rule 3(3)g of the Rules, which requires an appellant to identify (i) the errors that are the grounds of the appeal, and (ii) where those errors are located in the RPD's decision, or in the transcript recording of its hearing.8 [11] The RAD has conducted an independent assessment of all of the evidence that was before the RPD in commensuration with the errors raised by the Appellant. In so doing, the RAD could not help but notice the misstatement of the state protection test by the RPD. [12] At paragraph 20 the RPD states in its decision: "The panel considered whether or not there is adequate state protection in Belgium, whether or not the claimant reasonably and diligently availed himself of that protection, and whether he has provided clear and convincing evidence of the state's inability to protect him [emphasis added]." While it is incumbent on the RPD to adopt a contextual approach to the evidence when considering whether the presumption of state protection has been rebutted, including a consideration of the efforts made by the appellant to obtain the protection of the authorities,9 there is no requirement in the jurisprudence which qualifies the efforts made by the Appellant to be reasonable or diligent. [13] However, the RAD finds that this error does not change the outcome of the decision because the RAD finds that there is state protection available to the Appellant in Belgium. [14] Having listened to an audio recording of the RPD decision, the RAD finds that the RPD did accurately summarize the Appellant's evidence in this regard. Furthermore, the RAD has read the documentary evidence with respect to the availability of state protection in Belgium and concurs with its assessment. CONCLUSION [15] The RAD concludes that there is less than a serious possibility that the Appellant would be persecuted if he were to return to Belgium, and, therefore, he is neither a Convention refugee nor a person in need of protection. [16] For the reasons provided above, the RAD dismisses this appeal and confirms the decision of the RPD. (signed) "Deborah Morrish" Deborah Morrish December 21, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 20. 3 Ghauri, Mohammad Habib v. M.C.I. (F.C., no. IMM-3426-15), Gleeson, May 16, 2016, 2016 FC 548. 4 Ibid. 5 Murugesu, Leeladevi v. M.C.I. (F.C., no. IMM-5724-15), Fothergill, July 19, 2016, 2016 FC 819. 6 Liu, Hong Zin v. Minister of Citizenship & Immigration, 2017 FC 736. 7 Kumar Prasad Dahal, Durga Cahal, and Diwas Dahal v. Minister of Citizenship and Immigration, December 4, 2017, IMM-330-17, 2017 FC 1102, para. 30. 8 Ibid. 9 Garcia, Debora De Araujo v. M.C.I. (F.C., no. IMM-5987-05), Campbell, January 24, 2007, 2007 FC 79. Reported: Garcia v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 385 (F.C.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-02201