MC0-06134

RAD File No. / No de dossier de la SAR : MC0-06134 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision April 6, 2021 Date de la décision Panel Guerlain Guerrier Tribunal Counsel for the person who is the subject of the appeal N/A 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] XXXX XXXX XXXX XXXX is a citizen of Guinea. He is appealing the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. [2] The appellant states that he is threatened and psychologically affected by the situation in his country, which he describes as: [translation] "A country of misery, suffering, unemployment and chronic poverty whose people have been left to fend for themselves. Sixty years after independence, Guinea remains a violent and unsafe country, like many African countries." [3] To help his people, the appellant devised a plan to pursue higher education abroad. Inspired by great political leaders like Mandela and Gandhi, he hoped that this preparation would help him make an impact on Guinea's history. In 2015, he went to the United States to learn English. His ultimate goal was to get to Canada, which he did in XXXX 2018. [4] The RPD found that the appellant was not credible and had failed to establish a prospective risk with a nexus to the Convention or a personal risk within the meaning of subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). [5] The appellant is not contesting the RPD's conclusion that the problems he experienced in his country have no nexus to the Convention. However, he argues that the RPD erred in its assessment of subsection 97(1) of the IRPA. The appellant also argues that the RPD erred in drawing a negative inference about his credibility because he did not claim asylum in the United States and because he did not drop his courses earlier to come to Canada. [6] I am of the view that credibility is a peripheral issue in this case. [7] The RPD was not wrong to conclude that the delay in claiming asylum in the United States and the delay in coming to Canada for financial or school-related considerations-getting his money back for classes or finishing a semester-undermine the appellant's credibility. [8] However, in my opinion, the determinative issue is the prospective risk. Even if one accepts that the appellant has a genuine subjective fear, the onus is still on him to establish that if he returned to Guinea he would be subjected to torture, a risk to his life, or a risk of cruel and unusual treatment or punishment. DETERMINATION [9] I dismiss the appeal and confirm the determination of the RPD that the appellant is not a Convention refugee or a person in need of protection. ANALYSIS [10] The role of the Refugee Appeal Division is not to carry out a de novo consideration of refugee protection claims, but to determine whether the RPD erred as alleged.1 I conducted an independent analysis of the record in order to reach my own conclusions.2 This included listening to the RPD hearing recording and reviewing the RPD's record and the appellant's record. I concluded that the correctness standard of review should be applied.3 [11] The appellant is claiming protected person status under subsection 97(1) of the IRPA. He must establish that if he returned to Guinea, he would be personally subjected to torture, a risk to his life, or a risk of cruel and unusual treatment or punishment. Specifically, the appellant must establish that the prospective risk is personal, that there is a lack of state protection, that the risk is present in every part of the country and that it is not a generalized risk. Furthermore, the risk must not be caused by inadequate medical or health care. [12] With regard to section 96 of the IRPA, the appellant states that his candid testimony did not establish any nexus to the Convention. He acknowledges that he was not involved in politics in Guinea. He is of the view that if he had been, he would have [translation] "frivolously" put his life at risk without ever being able to make any real change in the country. He was also not interested in making something up or discussing his membership in Guinea's Christian minority, which he claims is [translation] "marginalized." However, the appellant argues that he should obtain Canada's protection to be spared Guinea's sociopolitical situation. He specifically refers to physical and mental torture and the terror caused by [translation] "deadly violence," violence that is the "source of war, genocide, and rebellion in the countries around Guinea." [13] First, because the appellant referred to it in passing, I would note that there is no evidence before me establishing that the appellant faces a serious possibility of persecution based on his Christianity. I conclude that the appellant would not be persecuted because he is Christian if he had to return to Guinea. [14] Moreover, the appellant tries to rely on the political and socio-economic situation in Guinea-in neighbouring countries even-to establish his prospective risk, but he is not personally targeted. It is possible to consider, for risk assessment purposes, the risk that individuals in similar situations face. However, the appellant has not established that he has a political profile or is a member of a particular at-risk group in Guinea. According to his description, the risk the appellant faces stems from a generalized risk in that country. It applies to all residents of Guinea. As a result, the appellant cannot obtain protection. Protection is limited to those who face a specific risk that is not generally faced by other nationals of the country. The appellant did not establish any substantial grounds for believing that he would be subjected to torture [15] The appellant refers to a prospective risk of torture based on the situation in Guinea. He has not submitted any evidence that he would be subjected personally to a danger of torture. Establishing that torture occurs in Guinea is not enough to discharge his burden. [16] The appellant states that torture can also be psychological. He is absolutely correct. The Convention against Torture (CAT) defines the term as follows: For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.4 [17] This explains that torture would involve physical and psychological acts being inflicted upon the appellant himself by agents of the state. Mere awareness of the troubles in his country does not constitute torture. The appellant failed to establish that if he returned to Guinea he would be subjected to torture as defined in the CAT. [18] In my opinion, the appellant has not discharged his burden by simply citing what he considers to be the unfortunate circumstances of the Guinean people. CONCLUSION [19] I dismiss the appeal and confirm the determination of the RPD that the appellant is not a Convention refugee or a person in need of protection. (signed) Guerlain Guerrier Guerlain Guerrier April 6, 2021 Date IRB translation Original language: French 1 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 2 Gomes v. Canada (Minister of Citizenship and Immigration), No. IMM-2283-19, Pamel, April 9, 2020; 2020 FC 506, paragraphs 48 to 52. 3 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36; G.A. res. 39/46 [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-06134 RAD.25.02 (January 2020) Disponible en français 3 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