TB5-11564

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 : TB5-11564 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 15, 2015 Date de la décision Panel Roslyn Ahara 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), who is a citizen of the Philippines, is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. No new evidence has been submitted in support of this appeal, nor is the Appellant requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. She is, however, asking the RAD to allow the appeal. DETERMINATION [2] Pursuant to subsection 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 alleges that her older sister was killed in a bombing by Islamic separatists in Mindanao in 1989. A cousin was also injured. The Appellant alleges that similar incidents continue to occur, however they are becoming more serious owing to the presence of local Islamic splinter groups, and also groups with international terrorist connections. Some of these groups are demanding separation of Mindanao into a state governed by Muslim law. According to the Appellant, these bombings and terrorist acts are committed by groups opposed to the Philippine government and as a result, many civilians are harmed. [4] The Appellant fears being harmed, however in particular, she fears a risk of kidnapping of her Canadian-born daughter, at the hands of either the militants or by common criminals. She acknowledges that such crimes are common and often target individuals from abroad as they are perceived to have money. The Appellant's fear, therefore, is mainly for her daughter, as well as a concern that she would then be compelled to pay a ransom. [5] In 2008, the Appellant left the Philippines to work in Taiwan and she has returned on two occasions to visit. Following the last visit, the Appellant came to Canada on a work permit, which expired in XXXX 2014. Although attempts to renew it were unsuccessful, the Appellant made a refugee claim in April 2015. [6] The Appellant's claim is based on grounds of her Catholic religion. She also fears being harmed in bombings and in armed-conflict between the Government of the Philippines and various extremist groups whom she identifies as Muslim. [7] She alleges that there is no state protection and an internal flight alternative is not viable. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [8] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] The following new evidence has been submitted: * An article entitled "The Law in Practice" (Meaning of "refugee" and "being persecuted") dated July 31, 2015 and appears to be from the internet. * A link to a website "Pastor escapes ISIS-Inspired Kidnapping" dated April 2015, which pre-dates the rejection of the claim. * Canada Travel Advisories, indicating a high degree of caution due to an ongoing terrorist threat to Westerners. (no date) * Links to information about the Bangsa Moro Basic Law (BBL), travel warnings in the Philippines, in Mindanao, either undated or pre-dating the rejection of the claim. [10] The RAD finds that for the most part, the foregoing pre-date the rejection of the claim, and in the absence of an explanation, the references do not meet the statutory requirements. [11] As for the article entitled "The Law in Practice", the RAD finds that the RPD has applied the reasoning as set out by the Federal court in terms of the legal test to be met for section 96 of the IRPA. [12] The legal test as articulated in Adjei1 is "reasonable chance or serious possibility" and it has been upheld by the Federal court for many years. [13] "To make a successful section 96 claim, an application must demonstrate a well-founded fear of persecution. This has both a subjective and an objective element. The subjective component relates to the existence of fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for this fear".2 An applicant must establish its case on the balance of probabilities and meet the legal test of "reasonable chance" or "more than a mere possibility"". That is, is there a reasonable chance that persecution would take place if the applicant were returned to his or country of origin. This "need not be more than a 50% chance but is more than a minimal possibility".3 [14] The RAD also takes guidance from the recent Federal court decision in Kassim4 where in a judicial review of a RAD decision, the learned Judge noted that the RAD had used the test of "serious possibility" and found it had properly applied the legal test as set out in s.96 of the IRPA. ROLE OF RAD [15] No submissions have been made by the Appellant. The RAD has been guided by the reasoning in the Federal Court decision in Huruglica.5 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." SUBMISSIONS BY THE APPELLANT * Is there a real chance of the Appellant being persecuted if she returns to her country of nationality? * Is the Appellant a person in need of protection against danger/torture/risk to life within the meaning of Article 1 of the Convention? RPD'S FINDINGS Nexus [16] The RPD found the Appellant to be credible. However, it found that she had not established a nexus to one of the five Convention refugee grounds. Rather, the RPD found that although the Appellant alleged grounds of religion and politics, it was terrorist acts that occurred indiscriminately, and these perpetrators did not target on the basis of any of the five Convention refugee grounds. [17] The RPD noted the "Philippines travel warning" that the Appellant submitted. In this article, the RPD notes that it lists areas particularly prone to kidnapping and the province of Sultan Kudarat was listed as one of those such targets. The RPD, on the other hand, noted the objective documentary evidence submitted by the Appellant herself, which indicated that the actions of these groups are found to be criminal. The RPD, therefore, concluded, on a balance of probabilities, that the Appellant's risk was a criminal risk and one that pertains to the entire population. [18] The RPD further noted that the Appellant alleges a fear that Mindanao will become an Islamic State. The RPD found this to be speculative. [19] Moreover, it found that there was no evidence of the Appellant having been targeted in the past on the grounds of her religion. [20] The RPD examined the NDP6 to determine if being a Roman Catholic places the Appellant or any individual at any particularized risk. The Appellant testified that she has no political profile in the Philippines. [21] It concluded that, on a balance of probabilities, the Appellant would not face a serious possibility of being targeted on either the grounds of religion or imputed or real political opinion, and it reached this conclusion based on the Appellant's testimony and the objective evidence. RAD'S FINDINGS [22] The RAD concurs with the RPD in its finding of a lack of nexus to one of the five Convention refugee grounds, namely, race, religion, nationality, real or imputed political opinion, or membership in a particular social group. There is a plethora of Federal court jurisprudence in this regard: For example: In Nasso, Carlos Oscar Di v. M.C.I. (F.C., no. IMM-6074-02), Pinard, November 20, 2003; 2003 FC 1354. The applicants, citizens of Argentina, allege a well-founded fear of persecution and a risk of torture or cruel and unusual treatment or punishment at the hands of a group of organized criminals. Their problems began in April 2000 when they were victims of a violent home invasion. The threats, assaults, and robberies continued. (1) The Board did not misinterpret and unduly restrict the scope of the definition of "cruel and unusual treatment or punishment". The Board's evaluation of this aspect of the claim was thorough and legally sound. The Board concluded that the threats and the harm suffered by the applicants were not serious enough to meet the threshold of "cruel and unusual treatment or punishment." Application dismissed. In Kouril, Zdenek v. M.C.I. (F.C.T.D., no. IMM-2627-02), Pinard, June 13, 2003; 2003 FCT 728. The claimant, a citizen of the Czech Republic, claims Convention refugee status on the grounds of political opinion and membership in a particular social group, as victims of organized crime. (1) The Board correctly found a lack of nexus between the claimant's fear and either of the two Convention grounds which he cited: "victims of fraudulent actions of organized crime" do not constitute a particular social group, and the claimant's actions in denouncing the criminals, Holub and Company, did not constitute the expression of a political opinion (Klinko, Ward). (emphasis in original) [23] Accordingly, the RAD concurs with the RPD's finding that the claim fails under section 96 of the IRPA, and the remainder of the analysis is pursuant to section 97 of the IRPA. Section 97 of the IRPA [24] The RPD considered the Appellant's fear of harm from militant groups or owing to fighting between such groups and the Government of the Philippines, however concluded, on a balance of probabilities, that this is a risk faced by the population at large in her usual place of residence, and is therefore subject to an exception found at 97(a)(b)(ii) of the Act. It found that the fear the Appellant faced is faced generally by the population who go to malls or bus-terminals or marketplaces. [25] The RPD also considered the testimony of the Appellant with respect to her fears of her daughter being kidnapped, as both criminals and extremist groups are known to target foreign-born individuals as they are perceived to have money. The RPD cited the documentary evidence submitted by the Appellant7 wherein it states that one extremist group, Abu Sayyaf, "views foreigners as walking dollars", as well as other examples of such kidnappings of an Australian, two Malaysians, an Indian, and a Japanese. It also notes that a number of locals, including wealthy Filipinos of Chinese descent and teachers have been kidnapped. [26] However, the RPD pointed out to the Appellant that her daughter was not eligible, as a Canadian, to make a refugee claim. However, having said this, the RPD considered that as her mother, the Appellant would not be operating independently of her daughter. Therefore, the RPD did, in fact, assess the evidence and determined that the Appellant's daughter would not be, on a balance of probabilities, a person of interest to criminal and terrorist groups conducting kidnappings for ransom. It came to this conclusion based on the documentary evidence which indicates that those individuals targeted principally are on the basis of having a wealthy profile. The Appellant acknowledged that they had no such profile. [27] The RPD further considered if the Appellant's daughter, simply based on her nationality, would be targeted by Abu Sayyaf and other groups. Although the Appellant testified that it would become known from rumors that her daughter is a Canadian, the RPD found that outside of her circle of family and acquaintances, her child's foreign nationality will not be known unless she made it known. The RPD concluded that as a returning foreign worker, her profile is not that dissimilar from millions of Filipinos who have worked abroad and sent money home for the maintenance of family and at some point returned home. RAD'S FINDINGS [28] Subsection 97(1) of the IRPA reads: (i) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or if they do not have a country of nationality, their country of former habitual residence would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture, or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if, the person is unable or, because of that risk, unwilling to avail himself of the protection of that country, (ii) the risk would be faced by the person in every part of the country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to local sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health of medical care. [29] The wording of subsection 97(1)(b)(ii) of the IRPA is important here because the fear, as expressed in oral testimony and the written PIF narrative, is a generalized fear of common criminals. Generalized Risk [30] The onus is on the Appellant to provide evidence to the Board that she is being targeted and that, in the particular circumstances of her case, the target is individualized. [31] The Board is guided by a number of Federal Court cases. In Acosta,8 the Federal Court upheld a decision of the Refugee Protection Division, which found that even though the claimant was being sought by a criminal gang for not co-operating in an extortion plot, he was still a victim of generalized violence. Further, in Ventura De Parada,9 the applicants were found to belong to what was described as a subgroup of "business people." In Carias10 and Cius11 the applicants were being targeted on the basis of their perceived wealth and the Federal Court upheld the Board's decision of the application of generalized risk. [32] The particular circumstances of this case have been outlined above. The panel finds that the risk the claimant faces would be exempted pursuant to section 97(1)(b)(ii) of the IRPA, as his fear of crime is a risk faced generally by others in the Philippines. [33] However, the RAD also examined other issues as alleged by the Appellant. In her BOC form, she had stated that her claim was based on religious grounds as a Roman Catholic. However, the RPD found that this claim was not grounded in religion. The RAD notes that according to a survey conducted by the National Statistics Office in 2000, approximately 93 percent of the population is Christian and a large majority of the Christians are Roman Catholic.12 [34] The constitution and other laws and policies generally protect religious freedom. There is no state religion and the constitution provides for the separation of church and state. The law treats intentional attacks directed against buildings dedicated to religion as war crimes or crimes against international humanitarian law. [35] The law requires organized religious groups to register with the Securities and Exchange Commission and with the Bureau of Internal Revenue to establish tax-exempt status. There is no non-tax penalty for failing to register and some groups do not. The registration process is non-discriminatory. [36] The government permits religious instruction in public schools with written parental consent provided there is no cost to the government. Based on a traditional policy of promoting moral education, local public schools give religious groups the opportunity to teach moral values during school hours. Attendance is not mandatory and the various groups share classroom space. The government also allows groups to distribute religious literature in public schools. [37] By law, public schools must ensure the religious rights of students are protected. Muslim students may wear the hijab (women's headscarf) and Muslim girls are not required to wear shorts during physical education classes. [38] With respect to terrorism, the 2007 Human Security Act is the principal counterterrorism legislation in the Philippines. The law defines terrorism and provides methods for law enforcement to conduct investigations of terrorist suspects. President Aquino has prioritized the adoption of amendments to the Human Security Act in three main areas: revising the definition of terrorism to conform to international standards; easing strict monetary penalties and prison terms against law enforcement officials involved in cases where individuals are wrongly accused and later acquitted; and removing barriers to support investigations. [39] Despite those legislative efforts, an under-resourced and understaffed law enforcement and judicial system coupled with widespread official corruption resulted in limited domestic investigations, unexecuted arrest warrants, few prosecutions, and lengthy trials of cases. Philippine investigators and prosecutors lacked necessary tools to build strong cases such as clear processes for requesting judicially authorized interception of terrorist communications, entering into plea bargains with key witnesses, and seizing assets of those suspected in benefiting from terrorism. [40] The United States continued to work with the Government of the Philippines to investigate subjects associated with the development and operations of a JI training camp in the southern Philippines. The Government of the Philippines has arrested multiple persons with suspected ties to ASG and JI. [41] On June 16, the Philippine National Police (PNP) arrested five suspected ASG members and seized numerous IED-making components. [42] On July 23, a trial commenced in Cebu City against two members of the MNLF, Ronnie Jammang and Marlon Jilhano, for the IED attack on a U.S. convoy in Kagay, Jolo, in 2009, which killed two U.S. Servicemen and one Philippine Marine. The trial was subsequently postponed for the remainder of 2013 because of a major earthquake that damaged Cebu's Hall of Justice. [43] On November 5, Jabide Abdul, a leader of the al-Khobat Group, which the PNP reports had ties with JI and is believed to be responsible for several bomb attacks in Central Mindanao, was arrested by Sultan Kudarat. Abdul was the subject of several arrest warrants for murder, destruction of property, and related crimes. [44] The Philippines Antiterrorism Council (ATC) provides guidance to agencies responsible for enforcing terrorism laws. In 2013, the UN Office of Drug Control worked with the ATC to develop a manual on Collaborative Intelligence, Investigation and Prosecution of Terrorism-Related Cases in the Philippines. Coordination between law enforcement, investigators, and prosecutors, however, remained sporadic. [45] The Philippine National Police (PNP) maintains legal responsibility for ensuring peace and security throughout the county, including arresting terrorists and conducting terrorism investigations. In some of the conflict-affected areas, the PNP has relied upon the Armed Forces of the Philippines to conduct counterterrorism operations. The creation of the PNP Special Action Force (SAF) has helped to strengthen law enforcement counterterrorism capabilities; however, the SAF remains a relatively small unit. The SAF has received training through multiple sources including the Joint Special Operations Task Forces - Philippines, and has been designated as a unit that will be given communications equipment through the U.S. Global Security Contingency Fund. [46] The Philippines remained an important partner in the U.S. Department of State's Antiterrorism Assistance (ATA) program, which provided extensive tactical training to PNP officers, including SAF members, to support the transition in the southern Philippines from military to civilian counterterrorism authority. ATA assistance included instruction in areas such as crisis response, hostage negotiation, and explosive ordnance disposal training. The ATA program has also focused on building PNP capacity to conduct counterterrorism-related investigations, including cyber investigations. [47] The Philippines continued to improve the security of its passports. Beginning in 2007, the Philippines started to issue machine readable passports. Three million non-machine readable passports remained in circulation at year's end, the last of which expired in 2013. Phase one of the Automated Fingerprint Identification System (AFIS) is complete, and the system has been installed at the NBI's headquarters. Phase one was the build-out of the physical AFIS facility at NBI HQ and the digitization of 850,000 fingerprint records. Regional and International Cooperation: The Philippines participated in the Association of Southeast Asian Nations Defense Ministers' Meeting Plus (ADMM-Plus) and supported the ADMM-Plus Experts' Working Group on Counterterrorism. Through U.S.sponsored antiterrorism training, the PNP developed contacts with law enforcement agencies in Indonesia and Malaysia. Although the Philippines is not a member of the Global Counterterrorism Forum (GCTF), Philippine officials regularly attend GCTF-organized events. Countering Radicalization to Violence and Violent Extremism: The Philippines government continued its counter-radicalization program: Payapa at Masaganang Pamayanan or PAMANA (Resilient Communities in Conflict Affected Communities). The Philippines government worked with the GCTF in an effort to apply the Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent Extremist Offenders. With respect to kidnapping threats, the RAD notes the documentary evidence which indicates that the PNP Anti-Kidnapping Group (AKG) is primarily responsible for kidnapping investigations. AKG officials report that kidnapping incidents in Mindanao are mostly perpetrated by Muslim individuals/groups that are members or allies of terrorist organizations, such as ASG, MILF, and the Lawless MILF Group (LMG). Kidnappings remain prevalent in western Mindanao, particularly in the Autonomous Region Muslim Mindanao (ARMM) area/provinces, the Zamboanga Peninsula, and in Cotabato-Central Mindanao region, specifically in the provinces of South and North Cotabato, Sarangani, Sultan Kudarat, and in the Chartered Cities of Zamboanga, General Santos City, Cotabato, Iligan, and Cagayan de Oro. Several militant groups see kidnap-for-ransom (KFR) as way to fund their operations, and foreigners are often targeted. In February 2012, two European tourists were kidnapped on Tawi Tawi on the Sulu Archipelago; they remain in captivity. While kidnappings do occur throughout the country, the majority of the kidnappings in Manila and areas north of Mindanao are primarily criminal in nature. These criminals mainly target local business people and individuals who are perceived as affluent. These criminal groups also tend to negotiate for a ransom within a relatively brief period measured in days or weeks as opposed to years. Victims are often returned to their families after the ransom has been paid.13 [48] There has been an almost ten percent decrease in recorded crime volume for the entire country from 2011 to 2012. As for the kidnapping cases perpetrated by OCGs, the PNP reports that there has been a substantial decline over the years beginning from 2009. From 35, the cases have gone down to 21 in 2010, 11 in 2011, and seven cases in 2012.14 CONCLUSION [49] The RAD concurs with the RPD's analysis of this claim. After conducting an independent assessment of the entire record, the RAD finds that the Appellant's fear that Mindanao will become an Islamic state is speculative. The RAD further finds that there was no evidence to support a religious or a political claim. [50] The RAD has considered the Appellant's fears of kidnapping, notwithstanding the fact that her child is a Canadian. The documentary evidence indicates that extremist and criminal groups are known to target foreign-born individuals as some are perceived to have money. The RAD concurs with the RPD that the Appellant and her daughter do not have this profile. There are many similar individuals who have worked abroad and sent money home for the maintenance of family and at some point returned home. The RAD concurs with the RPD that the Appellant's daughter would not be a target as a consequence of her Canadian nationality. [51] Accordingly, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara December 15, 2015 Date 1 Adjei v. Canada (Minister of Employment and Immigration),(1989) 2 F.C. 680. 2 Rajudeen v. Canada (Minister of Employment and Immigration (FCA) (1984) FCJ No. 601. 3 Adjei v. Canada (Minister of Employment and Immigration),(1989) 2 F.C. 680 above at paras 4-5 and 8-9, followed and explained in Ospina v. Canada (Minister of Citizenship and Immigration (2011) FCJ No. 887. 4 Kassim Mohamed Ali v. M.C.I. (IMM-412-15 2015 FC 1231) 5Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 6 Exhibit RPD-1, RPD Record, exhibit 3, National Documentation Package (NDP) for Philippines (30 April 2015) item 12.1. 7 Exhibit RPD-1, RPD Record, RPD exhibit 4. 8 Acosta, Dunis Joel Acosta v. M.C.I. (F.C., no. IMM-3731-08), Gauthier, March 2, 2009, 2009 FC 213. 9 Ventura De Parada, Ana Margarita v. M.C.I. (F.C., no. IMM-1021-09), Zinn, August 27, 2009, 2009 FC 845. 10 Carias, Jose Roberto v. M.C.I. (F.C., no. IMM-1704-06), O'Keefe, June 7, 2007, 2007 FC 602. 11 Cius, Ligene v. M.C.I. (F.C., no. IMM-406-07), Beaudry, January 7, 2008, 2008 FC 1. 12 Exhibit RPD-1, RPD Record, NDP, item 12.1. 13 Exhibit RPD-1, RPD Record, NDP, item 7.1. 14 Exhibit RPD-1, RPD Record, NDP, item 7.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-11564