TB4-01438

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 : TB4-01438 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX 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 July 2, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Tamesha Foote 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 (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX XXXX a citizen of the Philippines, appeals a negative decision of the Refugee Protection Division (RPD) dated November 18, 2013. The Appellant does not submit new evidence and is not requesting an oral hearing. The Appellant is asking for the RAD to look at the evidence submitted at the original hearing and assess the Appellant's testimony and the reasons for refusal and render a positive decision. The Refugee Appeal Division (RAD) may also decide in the alternative to refer the matter back to the RPD for redetermination by a differently-constituted panel. The Appellant submits that he was refused protection based on his delay in claiming protection. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), 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 [3] The Appellant alleges that he is affiliated with a political party in the Philippines, and his involvement was discovered because he XXXX XXXX XXXX XXXX for the party. He would travel with the party and lead the campaign song. As a result of his participation, he alleges he was targeted. He received a note tied to his gate with a threat telling him to "get lost or you will be killed." He allegedly reported the threatening note to the police, but they did not file a statement because he did not have a suspect. He received the death threat three weeks after the Barangi captain for the party XXXX XXXX was shot in front of his store. The Appellant relocated to XXXX where his brother lives. He kept a low profile, stopped travelling with the party and XXXX XXXX XXXX XXXX XXXX. The Appellant alleges that he was attacked in 2012 by two men on a motorcycle. The one assailant told him he would be killed because he did not stop "making" the XXXX XXXX. The men fled when a vehicle approached the Appellant. He alleges he will be shot and cannot live a normal life in the Philippines because of his affiliation with the political party. [4] In its reasons, the RPD found that the Appellant was not a Convention refugee or a person in need of protection. The RPD made the following findings: 1. The Appellant was not a credible witness. 2. The RPD drew a negative inference from his actions, the reavailment, the failure to claim at the port of entry, and the delay of over one year in making his refugee claim. The RPD found this impugns his credibility and points towards a lack of subjective fear. 3. The RPD drew a negative inference with respect to his account of events which happened to him in the Philippines. 4. The RPD concluded that the Philippines, based on their actions and the information in the documentation package, is capable of providing adequate state protection to the Appellant. [5] The Appellant challenges and denies all of the RPD's credibility findings. The RAD has thoroughly reviewed the Appellant's submissions and finds them somewhat unclear but has gone on to assess the arguments. [6] The Minister did not intervene in this application. [7] In the appeal, the Appellant made the following submissions: 1) The RPD erred in law. The RPD did not accept the Appellant's explanation based on the fact that he did not make a claim during his previous visit to Canada. According to Chapter 8 of the Immigration Rules and Regulations, he would not have been eligible for protection in Canada because he had at that time internal flight alternatives in XXXX XXXX 2) The RPD erred in fact when it drew a negative inference based on the fact that the Appellant did not make a refugee claim at the border. The RPD failed to take into account the Appellant's reasons for not claiming for protection at the border. 3) The RPD erred in law about his reavailment to the Philippines. 4) The RPD erred in law when the panel stated that the Appellant's assumption that the police will not assist him is speculative, as he testified that he went to the police and received no assistance. STANDARD OF REVIEW [8] The Appellant submits that the RPD made errors in its treatment of credibility and state protection. The alleged errors concern credibility and negative inferences which are errors of fact. The RPD's assessment of the evidence and application of law, on the matter of state protection, is a question of mixed fact and law. [9] The Appellant did not make any submissions on the issue of the standard of review. [10] The Federal Court, in Iyamuremye,1 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, as per Dunsmuir.2 [11] In the case at hand, the Appellant alleges that the RPD made errors of fact and mixed fact and law. Given the analysis above, the RAD therefore has afforded a considerable level of deference to RPD findings on questions of fact and mixed fact and law in this claim and will consider whether the findings meet the reasonableness test. ANALYSIS OF THE MERITS OF THE APPEAL [12] The determinative issues in the RPD's reasons were credibility and state protection. The RPD's Credibility Findings The Appellant's Reavailment [13] The Appellant submits that the RPD erred in law about his reavailment to the Philippines. [14] The Appellant submits that he relocated from XXXX XXXXto XXXX; therefore, when he returned to the Philippines, he did not go back to XXXX XXXX, he went to XXXX where he had an internal flight alternative (IFA) and felt safe. Therefore, he states this cannot be considered reavailment, as he did not go back to the city where he received the threats. The RAD does not accept this argument. [15] The RPD drew a negative inference from the Appellant's reavailment to the Philippines. The Appellant left the Philippines and came to Canada on four occasions (in XXXX2008XXXX XXXX2009, XXXX 2009 and XXXX2011), staying for three weeks on each visit. The Appellant stated this was to create the impression that he was no longer living in the Philippines so that his enemies would think that he no longer resided in the country. He testified that he returned to the Philippines on each of these four occasions because he felt safe living with his brother in another area of the country. The RPD did not consider the Appellant's explanation regarding his reavailment to the Philippines to be reasonable. The RPD gave several reasons for this finding; if the Appellant was fearful enough, such that he was motivated to leave the country and create an impression that he no longer lived there, it is not reasonable that the Appellant did not make a claim for refugee protection in Canada on one of those many visits and instead returned to the Philippines. Given the Appellant had provided testimony that he knew the men he feared were still actively searching for him each time he returned to the Philippines, the RAD finds it was reasonable for the RPD to draw a negative credibility finding from his actions in returning to the country in which he was at risk. Failure to claim at the Port of Entry and Delay in Claiming [16] The Appellant submits that the RPD erred in fact when it drew a negative inference based on the fact that the Appellant did not make a refugee claim at the border. The RPD failed to take into account the Appellant's reasons for not claiming for protection at the border. The Appellant submits that he had testified that he did not plan to stay permanently in Canada; he had family in the Philippines, and he wanted to work and save his money and move the entire family to a different country. [17] The RPD drew a negative inference from the Appellant's failure to claim for refugee protection at the port of entry. The Appellant explained that, although he intended to stay permanently in Canada because of what happened to him in the Philippines, he felt safe because he had been back and forth many times and was permitted to remain as a visitor for six months. The RPD did not accept his explanation as being a plausible explanation for his failure to claim at the port of entry. [18] The RPD considered the jurisprudence in Huerta3 regarding the assessment of the Appellant's delay in claiming in Canada: The delay in making a claim to refugee status is not a decisive factor in and of itself. It is, however, a relevant element which the Tribunal may take into account in assessing both the statements and the actions and deeds of the Claimant. The delay is significant in my view as is the timing of the refugee claim. [19] The RPD noted that the Appellant entered Canada in XXXX 2012 and maintained visitor status for six months; the RPD found it not reasonable that, if he was coming to Canada to get away from his problems and secure his safety, he would not seek assistance at his earliest opportunity upon arrival, particularly when looked at in conjunction with the fact that he had already been to Canada on four occasions and had previous experience with and contact with Immigration officials to ask for assistance or obtain help upon arrival. Because of this, the RPD drew a negative inference from his failure to seek protection at the port of entry and found that this impugns his credibility. The RAD notes the Appellant had a valid visitor's visa at the time of entering Canada, and there would be no reason for him not to believe he could remain safely in Canada. The RAD finds the RPD's negative credibility finding in this regard to be unreasonable. [20] The RAD went on to consider the RPD's analysis of the Appellant's subsequent delay in claiming after the expiration of his visitor's visa. [21] The Appellant's explanation for his delay of over one year in making his refugee claim was that, when his visitor's status expired, he did not apply for an extension because he spoke to others in the community who told him that Immigration would not give him a work permit, and he would be unsuccessful in filing a refugee claim, as he had no evidence of what happened to him. The RPD rejected this explanation and drew a negative inference from the Appellant's delay of over one year. [22] The RPD stated that the Appellant knowingly was in Canada without status since XXXX 2013. He did not seek advice from any immigration-related consultant or professionals but remained in Canada until he was apprehended by the Canada Border Services Agency (CBSA) for working illegally. Only then did he make a claim for refugee protection, after being confronted with the prospect of removal to the Philippines. [23] In assessing the reasonableness of his actions, the RPD considered that the Appellant is educated, having completed approximately one and one-half years of university, owned his own business in the Philippines and found him to be a fairly sophisticated individual. Because of this, the RPD believed he would have the means and ability to do his own research and/or seek the advice of professionals on the subject of refugee claims, but he failed to do so. [24] The RPD found that it is not reasonable that, if the Appellant feared for his life and believes he is personally being targeted by unknown individuals due to his political affiliation, he did not come forward and ask for assistance at his earliest opportunity, particularly once his visitor's visa expired. [25] The RPD drew a negative inference from the Appellant's actions of reavailment and the delay in making his refugee claim once his visitor's visa had expired. The RPD found this impugns his credibility and points towards a lack of subjective fear. The RAD finds the RPD supported its negative inference on these two issues, by noting that the Appellant is educated, once owned his own business and is fairly sophisticated. The RAD finds the RPD reasonably expected him to have the wherewithal to contact immigration-related professionals or have the means and ability to do his own research on the subject of refugee claims. The RAD finds that the Appellant's actions were not consistent with his alleged fear of persecution. He returned to the country of alleged persecution. The Appellant was given an opportunity to explain his actions, and the RPD considered his explanation. The RPD was not satisfied with this explanation; in the RAD's view, this was reasonable, given that the Appellant was living in Canada without status since XXXX 2013 in fear of deportation. There was ample evidence upon which the RPD based its findings, and therefore the RPD's findings are transparent and justifiable and ought to be accorded deference. [26] In addition, the Appellant submits the RPD erred in law by ignoring that the Appellant had an IFA at the time of his visit to Canada, and therefore the RPD erred in not accepting the Appellant's explanation based on the fact that he did not make a claim during his previous visit to Canada. The Appellant argues that, according to Chapter 8 of the Immigration Rules and Regulations, he would not have been eligible for protection in Canada because he had at that time an internal flight alternative in XXXX. The RAD does not accept this argument. The Appellant feared returning to the Philippines, and he believed he would have to live in hiding to be safe. He argues that, if he had a safe place to live in the Philippines, then he would have no claim. However, the evidence in his BoC contradicts that he had an IFA. The RAD notes the Appellant stated in his BoC narrative: I relocated to XXXX where my brother lives. I keep a low profile and I stopped travelling with the party. I use to manage my own XXXX and I close it down and stay inside. When I go outside I would always wear a woody [hoody] sweater to cover my head and face. [27] The RAD finds the Appellant living in hiding is not an IFA, and therefore his explanation is neither credible nor plausible. Events in the Philippines [28] The RPD drew a negative inference with respect to the Appellant's account of events which happened to him in the Philippines. The RPD gave little weight to the affidavits/statements from his family members due to the fact they are not from government bodies but friends and family who have a vested interest in the outcome of the Appellant's refugee claim. Further these documents provide inaccurate information of the sequence of events. The RPD determined the Appellant has not presented any evidence of who the agents of persecution actually are, and speculated that he believes unknown people are after him due to his affiliation with the Liberal Party. The Appellant did not provide any evidence that the alleged agents of harm have a continuing interest in him. His family are doing fine, and no one has been approached regarding his whereabouts. [29] The RPD found that the Appellant's fears are based on speculation without any objective evidence to support his conclusions and did not give weight to such speculation. The RPD found there was no evidence before them that the alleged agents of harm would have a continuing interest in the Appellant since he left the Philippines or would become interested in him if he returned. The findings of the RPD are reasonable and supported by the evidence. State Protection [30] The RPD went on to consider state protection for the Appellant as a victim of threats or crime. [31] The Appellant submits that the RPD erred in law when they stated that the Appellant's assumption that the police will not assist him is speculative. The Appellant testified that "he went to the police and received no assistance." [32] The RPD considered that the Appellant only sought police protection in 2006 when he visited the police station with the threatening note. The Appellant testified that the police, at that time, did not take a report because there was no suspect. The RPD notes that the Appellant did not ask or attempt to ask for a superior officer, and he did not try another police station in that area or in another area of the Philippines. The Appellant did not seek state protection in 2012 after he was attacked by men on a motorcycle. He testified that he did not know whom to trust, and the police also support politicians in the campaign, and he was afraid. He also testified that, because he had tried to report the threat in 2006 and was not taken seriously, he did not feel that it would be worth his time. [33] The RPD found the actions or lack of action on the part of one officer or one police station some four years prior are not indicative of a failure of the entire police force, and the Appellant was obliged to approach the state in order to rebut the presumption. The RAD notes the Appellant's own evidence provides that not only in his opinion are there police officers who are not bad and corrupt, but some support the political party he is affiliated with. The RAD finds there was no persuasive evidence before the RPD that these particular officers would not assist in such a matter and take steps to punish any perpetrators. The RAD finds the RPD's finding-that the Appellant's assumption that the police would not assist him is speculative-is justifiable and therefore reasonable. [34] The RAD finds that doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the presumption of state protection. Moreover, the police cannot be faulted for not offering protection, where incidents are not reported to them. The RAD notes that no evidence was presented by the Appellant that he would risk his life by accessing state protection. The RAD finds the failure to seek protection, especially after death threats, where the state is a functioning democracy with a willingness and apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim.4 [35] The RPD went on to consider that the Convention is forward looking. They considered that the Appellant is no longer involved in or affiliated with any political party or their activities, which is what the unknown agents of persecution desired. He has been absent from the Philippines for over a year, and he has produced no evidence that those agents of persecution are actively looking for him at this time. [36] The availability of state protection must be assessed on a case-by-case basis. The RAD has reviewed the RPD's reasons in light of this issue. The RPD correctly stated that the onus was on the Appellant to provide clear and convincing evidence of the state's inability to protect him.5 The RPD found his fear of unknown individuals to be speculative, and the panel went on to assess the level of democracy in the Philippines and its state protection systems. [37] The RAD finds that the RPD's decision considered a contextual approach to assessing state protection for people who are a victim of threats or crime in the Philippines and whether or not the Appellant has rebutted the presumption of state protection, as per Gonzales Torres.6 The RPD is not required to refer to each document in evidence when assessing the adequacy of state protection.7 [38] The RPD found that, if the Appellant experienced difficulties with persons upon his return to the Philippines, he has the ability to approach the police and to access state protection that is available in his country. [39] The RAD finds the RPD's decision was justifiable, intelligible, and transparent, and falls within the range of possible, acceptable outcomes defensible with respect to the facts and the law. SUMMARY AND DETERMINATION [40] It is clear that the RPD turned its mind to the relevant considerations in relation to assessing the adequacy of state protection for the Appellant in the Philippines. The RPD's finding that there was adequate state protection was transparent and the findings were justified by the evidence. The RPD reached a conclusion that falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law. It was for the Appellant to provide clear and convincing evidence of the state's inability to protect, and the RPD reasonably found that neither the Appellant's personal evidence nor the objective evidence was a clear and convincing rebuttal of the presumption of state protection. For these reasons, the RAD finds the RPD's finding regarding state protection was reasonable. Therefore, the RPD's findings were afforded a high level of deference, as per Dunsmuir.8 As the RAD has confirmed the RPD's finding on state protection, this is sufficient to dispose of the appeal. The RPD's determination should not be disturbed. DETERMINATION [41] Based on the analysis above, the RAD confirms the determination of the RPD's decision, as per s. 111(1)(a) of IRPA, that the Appellant is not a Convention refugee, nor is he a person in need of protection. The appeal is dismissed. (signed) "C. Forbes" C. Forbes July 2, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para. 47. 3 Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported: Huerta v. M.E.I. (1993), 157 N.R. 225 (F.C.A). 4 Camacho, Jane Egre Sonia, v. M.C.I. (F.C., no. IMM-4300-06), August 10, 2007; 2007 FC 830. 5 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724. 6 Gonzales Torres, Luis Felipe v. M.C.I., (F.C. no. IMM-1351-09) Zinn, March 1, 2010; 2010 FC 234. 7 De Toro, Martha Sofia Sernas v. M.C.I. (F.C., no. IMM-5635-11), Near, February 22, 2012; 2012 FC 245, para. 25. 8 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-01438