TB3-07972

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 : TB3-07972 Private Proceeding / Huis clos Redetermination of the Appeal 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 at Toronto, Ontario Appel instruit à Date of decision September 2, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Sol Gombinsky Conseil(s) 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] The Appellant, XXXX XXXX XXXX, is a citizen of Malaysia and appeals a decision of the Refugee Protection Division (RPD) dated October 9, 2013. The Refugee Appeal Division (RAD) initially rendered a decision on January 5, 2014. With a decision dated June 9, 2015, the Federal Court allowed the judicial review with respect to the s. 97 claim. The Appellant is submitting new evidence. In the event that the RAD does not set aside the RPD's determination, the Appellant is requesting that the RAD refer the matter back to the RPD. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (the Act), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant originally came to Canada on a visitor's visa in XXXX of 2005. He had been required to report for service in the Malaysian National Service in XXXX of 2006 but was granted a postponement. The Appellant made an application for permanent residency in 2011 and another application based on Humanitarian and Compassionate grounds in 2012. Both applications were denied. The RPD's hearing was held on September 24, 2013 and it rendered a decision on October 9, 2013. The Appellant appealed the RPD's decision to the RAD, and the RAD rendered its decision on January 5, 2014. The Appellant appealed the RAD's decision to the Court of Appeal and by a decision dated June 9, 2015, the Court allowed the judicial review with respect to s. 97 of the Act. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. 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". [5] While there has been some conflict in the case law from the Federal Court regarding the standard to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [6] 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 and will consider only the issues raised by the Appellant. New Evidence Documentary Evidence [7] The Appellant submitted new evidence in the form of five articles which included: 1) Article, dated September 24, 2013, concerning the death by beating of a trainee at a National Service Camp;3 2) Article: National Service Trainee Beaten to Death After Quarrel Over Breakfast;4 3) Daily Mail Article, September 25, 2013;5 4) Article: Time to Admit National Service is a Failure;6 5) New Straits Times: Article on Trainee's Death.7 [8] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4) which states: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] Because the dates of the articles are on or after the rendering of the RPD's decision, the RAD will allow these documents as evidence. ANALYSIS OF THE APPEAL [10] The RPD made two separate findings. With respect to s. 96 of the Act, the RPD found that the Appellant's delay "... of eight years in making a refugee claim in Canada, combined with a lack of a reasonable explanation, is indicative of a lack of subjective fear and is fatal to his claim for refugee status."8 [11] With respect to s. 97 of the Act, the RPD found that the Appellant had not rebutted the presumption of state protection and that he failed to establish a risk of harm. Issues Raised by Appellant [12] The Appellant raises the issues of claims credibility, state protection and having failed to establish a risk of harm. Merits of the Appeal [13] At the opening of the hearing the Appellant informed the RPD that his sister had also applied for refugee protection. However, he was not able to provide pertinent information with respect to the details of his sister's refugee claim. The RPD decided not to join the two claims. [14] The Appellant alleges that he came to Canada because his mother could not look after him, and he had been bullied by gangs as well as abused by his uncle. With respect to being bullied by the gangs, the RPD asked the Appellant if he or his mother had ever reported the incidents to the police, and he replied that he was too young. The RPD then asked if his mother had ever reported the incidents to the police, and he replied that she had not. [15] The RAD finds it unreasonable that neither the Appellant nor his mother would report the incidents to the police. The Appellant stated that he had been subjected to bullying over 10 times by many gangs. It is reasonable that an individual who is bullied on numerous occasions, by multiple gangs, would report the incidents to the police or ask his mother to report the incidents. Neither the Appellant nor his mother made any attempts to report the incidents to the police. There is no evidence which would indicate that the authorities did not provide nor were unwilling to provide protection to the Appellant from the gangs. [16] Based on the written and oral evidence of the Appellant, the RAD concludes that the Appellant failed to report the bullying to the authorities. As the Federal Court has stated: The adequacy of state protection ... cannot be assessed on the basis of the Applicant's reluctance or failure to seek it. The point is that, should she decide to seek it, it will be available to her. The Applicant cannot, in my view, argue that state protection is inadequate ... because... she is reluctant to seek it. She may well have subjective fears in this regard, but if the state can, objectively speaking, provide adequate protection for women in her position then she has not rebutted the basic presumption that state protection is available to her.9 [17] The Board finds that the Appellant has provided no sound rationale for the failure to report the bullying. The failure to report the bullying is not consistent with either a well-founded fear or indicative of any genuine attempt to obtain state protection. The RAD finds, on a balance of probabilities, that he did not do everything that he reasonably could to alert the police or to provide information to them. To qualify for refugee status, a claimant must satisfy the Board that he or she sought, but was unable to obtain, protection from their home state, or, alternatively, that their home state, on an objective basis, could not be expected to provide protection.10 In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.11 [18] With respect to serving in the National Service Program, the Appellant alleges that he could suffer harm or even die if he were to participate. Although the new evidence indicates that some members of the program have suffered harm, there is no evidence to indicate that the Appellant would be personally subjected to threats, persecution or torture if he were to participate in the program. Delay in Claiming - Section 97 [19] The Appellant does not challenge the RPD's finding with respect to the delay in claiming as it applies to s. 96. The RAD wished to raise the issue of delay in claiming as a determinative issue with respect to s. 97 and it asked the Appellant's counsel to submit written submissions of the question of whether delay in claiming is a determinative issue in s. 97 claims. Appellant's counsel provided written submissions to the RAD on August 17, 2015.12 Chronology [20] The Appellant arrived in Canada on a single entry visa on XXXX XXXX XXXX 2005. Malaysian law requires participation in a three-month National Service Program. The selection process is by lottery. After arriving in Canada, the Appellant learned that he had been selected for the program. The Appellant's mother had attempted, without success, to have the Appellant exempt from the service. The Appellant was ordered to report for service from XXXX XXXX, 2006 to XXXX XXXX XXXX 2006. He failed to do so and remained illegally in Canada for nearly five years. [21] The Appellant remained in Canada as an "illegal" subject to deportation until 2011 when he applied for permanent residency. The application was refused and he then made an application on Humanitarian and Compassionate grounds, which was refused in 2013. After this particular application was refused, he filed his claim for refugee protection. [22] When asked by the RPD as to why he had waited for so long before he applied for refugee protection, the Appellant replied that he was not aware of the procedure involved in making a refugee claim. The Appellant testified that both of his sisters had been living in Canada for four years when he arrived in 2005. The RPD asked him if he had asked his sisters for advice, and he replied that two years ago he was told by his mother and sister that he should not go back. The RPD then asked him if his sister had said anything to him about his status when he first arrived, and he said no. [23] The Appellant testified that he came to Canada because he had been bullied by several gangs over 10 times, and he was abused by his uncle. Furthermore, after arriving in Canada, he learned that he had been selected for the National Service. He remained in Canada for six years as an "illegal", subject to deportation, without making any attempts at legalizing his status in Canada. It is reasonable to expect that an individual who leaves his country of origin because he has been bullied by gangs numerous times and abused by his uncle, would take the opportunity to file a claim for refugee protection as soon as he arrives in Canada. It is true that the Appellant was XXXX when he arrived. But he waited for six years before making an application to legalize his status, and during the six years, he made no inquiries with either immigration lawyers or Immigration Services as to how he could remain in Canada legally. [24] Then the Appellant alleges that in 2009 he saw a TV commercial and read an article in a Canadian Chinese newspaper advising people to make a refugee claim; still the Appellant waited two years before he made any applications. In 2011 he applied for permanent status which was refused. When asked why he still waited until 2011 after seeing the TV commercial and reading the newspaper article to apply, the Appellant replied that his application had been rejected. [25] The RAD rejects this explanation. In fact, the Appellant did not answer the RPD's question as to why he waited nearly two years after reading the article before making an application. According to the testimony of the Appellant, both the newspaper article and the TV commercial recommended that individuals should make a refugee claim. Not only does the Appellant allege that he left his country because he feared gangs and his uncle, but by 2009, when the Appellant allegedly saw the TV commercial and read the article, he was already late three years in reporting for his National Service. It is reasonable to expect that he would have jumped at the opportunity to file a refugee claim as soon as he saw this information in the media, but this the Appellant did not do. [26] In fact, he waited until 2013 to file a claim for refugee protection after his application for permanent residence and his application on Humanitarian and Compassionate grounds had been refused. The RPD asked the Appellant if he had filed his refugee claim because these applications had been refused, and he replied that that was correct. [27] In his submissions, counsel argues that the delay in claim is not a determinative issue. The RAD respectfully disagrees with this submission. [28] The purpose of a claim for a refugee is to seek protection from the host country. A refugee claim is not meant to be used as one of the many and different applications which may be used by the claimant to remain legally in the host country. More importantly, a refugee claim is not meant to be used as a means of last resort after every other application to remain in the host country has failed. This is precisely what the Appellant has done. The Federal Court has repeatedly upheld that "... a refugee claim should not be looked at simply as one of many choices as to how to best seek status in Canada."13 [29] If the claimant truly feared returning to Malaysia, it is reasonable that he would have made every effort to seek refugee status as soon as he came to Canada or at least, as soon as he was made aware through the media advertisement of the refugee system in Canada. This he did not do. He only filed a claim for refugee protection after his application for permanent residency and his application on Humanitarian and Compassionate grounds had been refused. [30] If the Appellant had a subjective fear, he would have filed a claim for refugee protection soon after his arrival in Canada and not eight years later. I find, on a balance of probabilities, that the Appellant made no effort to file a claim for refugee protection upon his arrival in Canada, nor after learning through the media about the refugee system in Canada. I find, on a balance of probabilities, that the Appellant did not file his claim for refugee protection because he feared for his life if he were to return to Malaysia. [31] For all of the above reasons, I find, on a balance of probabilities, that the Appellant has failed to provide any satisfactory explanation for his delay in filing a claim for refugee protection. [32] Delay has been recognized by the Federal Court as an important factor in assessing a claimant's credibility and their subjective fear. It is reasonable to assume that persons with a well-founded fear of persecution will attempt to apply for refugee protection without unreasonable delay. The delay in this matter is so substantial, eight years, that it undermines the Appellant's credibility and his allegation that he faces a serious harm in Malaysia if he were to return. [33] In Mesidor, Mr. Justice Shore pointed out that: ... the courts have consistently held that a claimant's delay in filing a refugee claim can justify the rejection of a refugee claim in a case where this delay was not satisfactorily explained.14 [34] In the case of Williams, the claimant took two years to file a claim for refugee protection after her arrival in Canada. The court stated: The court recognized that, according to the case law, while delay in making a claim is an important factor to consider, it is not decisive; nonetheless, delay may, in circumstances such as in this case, suffice to warrant the dismissal of a claim, even though this is unfortunate for the applicant. The explanations of the applicant, viewed in the context of her uncorroborated evidence in its entirety, warranted the dismissal of her claim by the Board. 15 [35] In the Gadeliya decision, the Federal Court stated: "Since all refugee claimants must demonstrate an objective and subjective fear of persecution, the lack of subjective fear is fatal to any claim."16 In the Garzon decision, the court further amplified this point: "A finding that the applicant lacked subjective fear ... is sufficient, alone, for the Board to reasonably deny the refugee claim."17 [36] The RAD finds that the Appellant has not satisfied the burden of establishing a serious possibility of persecution on a Convention ground, or that he would personally be subjected, on a balance of probabilities, to a danger of torture, or a risk to life, or a risk of cruel and unusual treatment or punishment, upon his return to Malaysia. CONCLUSION [37] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the determination of the Refugee Protection Division that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino September 2, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Appellant's Pleadings, Murder at National Service Camp, p. 10. 4 Appellant's Pleadings, National Service Trainee Beaten to Death After Quarrel Over Breakfast, pp. 11 - 13. 5 Appellant's Pleadings, Daily Mail: 23 deaths since National Service Started, pp. 14 - 15. 6 Appellant's Pleadings, Time to Admit National Service is a Failure, pp. 16 - 18. 7 Appellant's Pleadings, New Straits Times: Trainee's Death a Crying Shame, p. 19. 8 RPD's Record, Exhibit 2, p. 6, para. 11. 9 Bolanos, Magaly Torales v. M.C.I. (F.C., no. IMM-2482-10), Russell, March 30, 2011; 2011 FC 388, para. 60; Alves Dias v. M.C.I. (F.C., no.IMM-7071-11), Near, June 8, 2012; 2012 FC 722, para. 18. 10 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171. 11 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 12 P-3, Written submissions from council, dated August 17, 2015. 13 Stojmenovic v. M.C.I. (F.C., no. IMM-6718-09), Hughes, September 2, 2010; 2010 FC 873, para. 5; Garzon v. M.C.I. (F.C., no. IMM-925-10), O'Keefe, March 2011; 2011 FC 299, para. 30. 14 Mesidor, Josue Peterlee v. M.C.I. (F.C., no. IMM-2233-09), Shore, December 4, 2009; 2009 FC-1245, para. 12. 15 Williams, Jacitha Jasette v. MCI (F.C., no. IMM-18-09), Lagacé, July 31, 2009; 2009 FC 793, para. 26. 16 Gadeliya, Konstantin Alek v. M.C.I. (F.C., no. IMM-5905-03), Beaudry, September 7, 2004; 2004 FC 1219, para. 22. 17 Garzon, Omar Yovani Ortiz v. M.C.I. (F.C., no. IMM-925-10), O'Keefe, March 11, 2011; 2011 FC 299, para. 30; Goltsberg, Yuriy v. M.C.I. (F.C., no. IMM-117-10), Kelen, September 9, 2010, 2010 FC 886; Gamassi, Hichem v. M.C.I. (F.C.T.D., no. IMM-5488-99), Pinard, November 10, 2000. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB3-07972 RAD.28.07 (June 2, 2015)