VB5-02861

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 : VB5-02861 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Appel instruit à Date of decision February 24, 2016 Date de la décision Panel Gordon C. McRae Tribunal Counsel for the person(s) who is(are) Erica Olmstead Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the "appellant"), a citizen of Malaysia, appeals the decision of the Refugee Protection Division (the "RPD") issued on September 1, 2015, denying his claim for refugee protection. Although the appellant states that he is relying on evidence referred to in section 110(4), no new evidence has been identified or submitted pursuant to section 110(4) of the Immigration and Refugee Protection Act (the "Act").1 If the Refugee Appeal Division (the "RAD") does not set aside the negative determination of the RPD the appellant seeks to have a hearing before the RAD pursuant to section 110(6) of the Act.2 [2] The appellant asks the RAD to set aside the determination of the RPD and find the appellant to be a Convention refugee3 as per section 96 of the Act or a person in need of protection as per section 97 of the Act. In the alternative, the appellant asks that the decision of the RPD be set aside and the matter be returned to the RPD for re-determination by a differently constituted Panel. [3] A copy of the appellant's Record was provided to the Minister on October 14, 2015. The Minister has not responded and so it is deemed that the Minister is not intervening in this appeal. DETERMINATION [4] Pursuant to section 111(1)(a) of the Act the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [5] The appellant was a XXXX in Malaysia. He was called to XXXX XXXX XXXX XXXX 1986. For the majority of his XXXX career he was a XXXX XXXX. His XXXX was called XXXX XXXX XXXX XXXX and was located in XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [6] In XXXX 2003 he was XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He also became a member of the XXXX XXXX XXXX for the period 2003-2004. [7] One of the major issues for the XXXX in this region, and indeed across the country, was the inordinate amount of time it was taking to get properties registered with the Land Registry office. As XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX the appellant and other XXXX from other regions held meetings with the land registry Director and his key staff, but nothing positive came from these meetings. [8] The appellant and the other XXXX decided that they would hold a press conference in order to bring the problem to the attention of the public and perhaps put pressure on the decision makers to deal with the unacceptable delays in land registration. [9] The strategy worked because the President became aware of the issue and ordered the creation of "flying squads" made up of civil servants that would travel to various land registry offices across the country and clear up the backlog. [10] The appellant only served as the XXXX XXXX for XXXX XXXX, opting instead to concentrate on his XXXX XXXX. [11] Shortly after he stepped down, the appellant noticed he was being followed, this persisted for five years, until he left the country. He also experienced a number of other disturbing situations. Although there was no sign of forced entry, someone gained access to his office and changed his entry code, hid his files, tapped his phone. His residence and car were broken into. The stove at the restaurant he was eating at exploded while he and his brother were eating their breakfast. Cars would try to run him down. While going to work one day he saw 10 to 12 men who he feels tried to intercept him. [12] The appellant believes that his work regarding the land registry delays got in the way of corrupt officials being able to charge extra fees to people who wanted to expedite their land registration. [13] He made complaints to the police who took his report but they did not do anything. He also complained to the XXXX XXXX with the same negative result. He filed a civil suit against the police in XXXX 2007 but never proceeded with it. He withdrew the suit in XXXX 2007. [14] While he was visiting Singapore in 2008, his two brothers arranged for him to be taken forcibly to the hospital for a psychiatric evaluation. He was released after ten days.4 [15] He left Malaysia in XXXX 2009. He applied for British citizenship but was denied. He has been travelling extensively since that date, but has not returned to Malaysia. [16] He applied for refugee protection in Canada on or about June 19, 2015. ISSUES [17] The appellant has identified the following issues in support of his application to have the RAD set aside the RPD decision:5 1) The RPD decision is not entitled to deference. 2) Did the RPD err in failing to consider the appellants ethnicity as a minority XXXX XXXX XXXX? 3) Did the RPD err by failing to conduct a cumulative assessment of the appellant's risk of persecution? NEW EVIDENCE [18] The appellant has not submitted any new evidence in this RAD appeal. THE ROLE OF RAD [19] The appellant made submissions with respect to the standard of review the RAD should apply to the assessment of the RPD decision.6 Counsel for the appellant submits that the RAD should not give deference or apply the reasonableness standard to the RAD appeal. For the most part, I agree with counsel in this regard. The exception is, if the RPD's credibility assessment forms part of the RAD analysis, depending on the circumstances, deference can be afforded the RPD. This is not the case in the matter before me as the RPD accepted the appellant as credible. Therefore this RAD gives the RPD decision no deference when analyzing the issues in this appeal. [20] While the Act sets out grounds for appeal, as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the RPD. The first Federal Court (the "Court") review of a RAD decision was in May 2014 (Iyamuremye).7 Since that time there has been a number of Court decisions rendered. It is fair to say that, to a large extent, the Court is not of one mind as to the standard of review that the RAD should apply. The majority of decisions have made one thing clear, however, and that is, the RAD should not apply "reasonableness" as its standard of review. Until such time as the Federal Court of Appeal brings more clarity to the standard of review, I take the Court's direction on this issue and do not apply the standard of reasonableness to this appeal. [21] I have examined the various Court decisions regarding the role of the RAD and find that the process of a hybrid appeal proposed by Mr. Justice Phelan in Huruglica8 is consistent with the common thread found in the majority of the Court decisions that state the RAD must comprehensively review the available relevant evidence when assessing the RPD's findings and come to an assessment of the appellant's refugee claim. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [22] Mr. Justice Phelan determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [23] In keeping with the majority of the Court's findings, I undertook to examine and review all the evidence in the RPD Record and conducted my own independent assessment of the evidence and came to my own conclusion based on that evidence. ANALYSIS Admissibility of New Evidence Presented On Appeal [24] Section 110(3) states the RAD may accept documentary evidence and written submissions from the Minister and the person who is subject of the appeal. Section 110(4) of the Act directs that the person subject of the appeal may only present evidence that arose after the rejection of their claim or evidence that was not reasonably available, or that the person could not have reasonably been expected, in the circumstances, to have presented at the time of rejection. [25] In this case the appellant states that he is relying on evidence referred to in section 110(4) of the Act.9 This indicates that the appellant is applying to have new evidence entered in his appeal, however, he does not identify any new evidence he wishes to enter. [26] I find that the appellant has not submitted any new evidence for consideration by the RAD in this appeal therefore no new evidence is accepted. Rad Hearing [27] Section 110 (3) of the Act directs the RAD, with certain exceptions, to proceed without a hearing on the basis of the Record of proceedings from the RPD. Section 110(6) states the RAD may hold a hearing if, in its opinion, the documentary evidence referred to in section 110(3) of the Act: a. raises a serious issue with respect to the credibility of the person who is subject of the appeal; b. is central to the decision with respect to the refugee protection claim and c. if accepted, would justify allowing or rejecting the refugee protection claim. As no new evidence has been accepted there is no statutory authority to order a hearing,10 hence, no hearing will be ordered in this matter. ISSUES Did the RPD err in failing to consider the appellants ethnicity as a minority XXXX XXXX XXXX? Answer: No [28] The appellant submits that the RPD erred by failing to fully consider the appellants ethnicity. I disagree. [29] It is apparent from the RPD Reasons that the minority ethnicity of the appellant was not a determinative issue. This is not surprising to this RAD as the appellant did not raise it as an issue at his RPD hearing. The appellant concedes he did not emphasize his ethnicity during his hearing. I certainly agree with this and find, rather than failing to emphasize his ethnicity he did not raise it as an issue at all. There were passing comments about the Malay majority but nowhere in his claim does he says he was targeted as a result of his ethnicity and so it is not surprising that the RPD did not deal with it. [30] What the appellant does say is that the problems he alleges he experienced started shortly after his term as the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, which expired in XXXX 2004. He does not testify to any problems previously and so it is reasonable to conclude that he did not face any issues regarding his ethnicity prior to XXXX 2004. If his ethnicity was a basis for persecution I would expect it would have manifested itself prior to XXXX 2004. [31] The evidence is clear that the appellant believes that the alleged problems were tied to his XXXX XXXX XXXX XXXX XXXX XXXX XXXX regarding the land registration process. [32] I do not agree that the RPD did not consider the ethnicity of the appellant. It was mentioned in the appellant's evidence and it is to be assumed that the RPD considered all the evidence before it. [33] Counsel draws the RAD's attention to Varga v. Canada.11 This matter can be distinguished from the Court's findings in Varga. The Court found that in Varga the unaddressed ground for persecution was hinted at in the personal information form and squarely raised in the testimony and documentary evidence.12 In this matter the appellant did not even suggest that the motivation for the alleged persecution was his ethnicity. [34] The Court notes that it is the responsibility of the appellant to make out his own claim. It is not reasonable to expect the RPD to undertake a microscopic analysis in an effort to uncover a potential risk if the appellant has not identified it.13 The Court went on to state that it agreed with Mr. Justice Zinn's finding in Galyana14 that the proper description of the Board's duties was described by the English Court of Appeal . The British Court found that the Tribunal cannot be expected to carry out an investigation themselves to see whether there are points which have not been relied upon by the appellant that could have been relied upon. They are not required to engage in a search for new evidence. What is expected of the Tribunal is that if there is a readily discernible point which favours the appellant although he has not taken it, the Tribunal should apply it in the appellants favour. [35] The appellant's allegation that he was the subject of persecution because of his minority ethnicity was not readily discernable in the evidence presented to the RPD and so it cannot be expected that the RPD would enter into an investigation itself to determine the relevancy of the issue. [36] The RPD did not err by not analyzing this in its Reasons. Did the RPD err by failing to conduct a cumulative assessment of the appellant's risk of persecution? [37] In order to succeed, the appellant needs to prove, on the balance of probabilities, that he has a reasonable subjective fear of persecution and that this subjective fear is objectively well-founded.15 A subjective fear of persecution is solely based on the assessment of the claimant's credibility while the objective fear is usually established by documentary evidence regarding country conditions.16 [38] In this case the appellant clearly has a subjective belief that he has been targeted because of his work with the XXXX XXXX. His subjective belief however is not supported by the evidence. [39] Simply put, the RPD did not accept, nor does this RAD, that the events the appellant believes happened actually occurred in the manner he believes they did and there is insufficient credible evidence to establish that whatever did happen was meant to target or harm the appellant. [40] I have conducted an independent review of the entire Record and I come to the same conclusion as the RPD that the appellant lacked sufficient credible evidence to support his subjective conclusions that he had been targeted. Therefore his claim must fail as it does not have a credible objective basis. [41] It is not necessary for me to restate in different words what the RPD adequately explained in its decision.17 The RPD clearly set out what its reasons were for rejecting the claim and this RAD agrees with those reasons. DECISION [42] Pursuant to section 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is neither a Convention Refugee nor a Person in Need of Protection. This appeal is dismissed. (signed) "Gordon C. McRae" February 24, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 RAD Exhibit 3, p. 9. 3 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. 4 RAD Exhibit 3, pp. 35 and 36. 5 RAD Exhibit 3, p. 189. 6 RAD Exhibit 3, p. 190. 7 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 8 Huruglica v Canada (Citizenship and Immigration), 2014 FC 799. 9 RAD Exhibit 3, p. 9. 10 Blade, Amadu Tema v. Canada (M.E.I.), 2015 FC 625, (IMM-3724-14), para. 32. 11 Varga v. Canada (M.C.I.), 2013 FC 494, May 10, 2013 (no. IMM-8539-12), Rennie. 12 Varga, para. 8. 13 Varga, para. 7. 14 Galyana v. Canada (M.C.I.), 2011 FC 254, para. 9. 15 Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689 16 Canada (Minister of Citizenship and Immigration) v. Alvarez Contreras -et al, [2009-04-23] IMM-4087-08, 2009 FC 398. 17 Denbel v Canada (Citizenship and Immigration), 2015 FC 629. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-02861