VC1-01128

RAD File / Dossier de la SAR : VC1-01128 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 28, 2021 Date de la décision Panel M. Oh Tribunal Counsel for the person who is the subject of the appeal Alima Racine 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 XXXX XXXX ("the Appellant") is a citizen of Egypt who fears persecution on the basis of his physical disability. The Refugee Protection Division ("RPD") rejected his claim. The RPD found that he lacked a subjective fear of persecution, due to his failure to seek asylum in the United States ("U.S.") and his decision to abandon a pending application for permanent residence there. The RPD also considered the discrimination faced by the Appellant in Egypt, but it found that even when considered cumulatively, there was no serious possibility of persecution in Egypt. The Appellant challenges the RPD's findings on appeal. [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"),1 the appeal is dismissed. I have independently assessed the evidence and reached the same conclusion as the RPD. The RPD correctly considered the instances of discrimination that the Appellant had previously experienced, but these, along with the country conditions evidence, did not establish that the treatment facing the Appellant in Egypt would amount cumulatively to persecution. The RPD also correctly determined that the Appellant's actions in the U.S. undermined his subjective fear. The Refugee Appeal Division ("RAD") confirms the RPD's decision and determines that the Appellant is not a Convention refugee or a person in need of protection. BACKGROUND [3] The Appellant describes that he was diagnosed with XXXX as an infant. It caused XXXX in his lower XXXX XXXX, resulting in a noticeable limp in his walk. The Appellant was taunted during his childhood. He felt that he was discriminated against at school, in public, at work, and in accessing housing. After losing his employment in 1998 when his company closed, the Appellant decided to move to the United States. He arrived in the U.S. in 2000 as a visitor, but he did not seek asylum. From 2000 to 2018, he made some attempts to regularize his status. In XXXX 2018, the Appellant chose to abandon a pending immigration application in order to seek refugee protection in Canada. [4] The RPD heard the Appellant's claim on December 22, 2020 and issued a written decision on February 4, 2021. The Appellant preferred to use the term, "physical handicap," to describe his state. The RPD considered the nature and extent of the Appellant's physical handicap. The Appellant maintained a relatively high level of physical function despite his XXXX. The panel considered how the Appellant had been treated in Egypt, and in what ways this resulted in violations of his human rights. The RPD reviewed the country conditions evidence, and it accepted that people with physical and mental disabilities faced societal stigma and discrimination. However, new legislation had improved the legal situation for persons with disabilities, and social security benefits were available. The RPD did not believe that the Appellant's treatment was so prejudicial to him that it rose to the level of persecution. The RPD noted that despite his claim that he experienced treatment amounting to persecution in Egypt, he had not sought asylum in the United States. The RPD found that this undermined the Appellant's subjective fear of persecution. The RPD concluded that the Appellant would not face cumulative discrimination amounting to persecution in Egypt. The RPD therefore rejected his refugee claim. Role of the Refugee Appeal Division (RAD) [5] The jurisprudence establishes that the RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.2 In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at independent findings based on the evidence before me. ANALYSIS [6] There are two main issues in this appeal: a) Whether the RPD erred in its assessment of whether the Appellant faced discrimination amounting cumulatively to persecution in Egypt; and b) Whether the RPD erred in its assessment of the Appellant's subjective fear. [7] I have addressed these in detail below. a) Whether the RPD erred in its assessment of whether the Appellant faced discrimination amounting cumulatively to persecution in Egypt [8] I have reviewed the Appellant's arguments, but I find that the RPD correctly considered the Appellant's treatment in Egypt, as well as the situation of similarly situated persons as evidenced by the country conditions. The RPD correctly concluded that there was no serious possibility of cumulative discrimination amounting to persecution in Egypt. [9] The jurisprudence defines persecution as a sustained or systemic violation of basic human rights. The treatment must be serious, and it must be repetitive, or systematic.3 Seriousness is equated with a key denial of a core human right, and the RAD must examine the harmed interest of the refugee claimant and to what extent the interest might be compromised.4 In addition, while certain incidents may only be discriminatory when considered in isolation, there is a requirement to consider the cumulative nature of that conduct, and whether it may amount to persecution.5 [10] In my view, the RPD correctly applied the jurisprudence. The RPD's analysis began with an examination of the extent and nature of the Appellant's physical handicap. The RPD then considered how the Appellant had been treated in Egypt, what prejudice was suffered as a result, and the likelihood that this treatment would persist in the future. This included a review of several factors, such as: i. The Appellant's emotional suffering due to social stigma; ii. The Appellant's past employment experiences in Egypt and his prospects of finding employment in Egypt free of discrimination; iii. The Appellant's experience of housing discrimination and the possibility of obtaining suitable housing upon his return; and iv. The Appellant's ability to access adequate healthcare in Egypt without facing discrimination. [11] The panel accepted that the Appellant had a limp, and that his left leg had atrophied, such that it was several centimetres shorter than his right leg. According to a doctor's report, this markedly limited the Appellant's walking. However, it seemed that the Appellant maintained a relatively high level of physical functioning despite the XXXX. The Appellant's condition was not painful, nor was it deteriorating. The Appellant did not require the use of a wheelchair, a walker, or any adapted sidewalks or building entrances. He was able to use public transportation without requiring assistance or accommodation. In the U.S., the Appellant was able to perform physically demanding tasks as a cook and as a cleaner, without reporting any significant disadvantages. I note as well that according to his testimony, the Appellant drove a bus when he first started his job in Egypt. Social stigma due to physical handicap [12] The RPD agreed with the Appellant that there were high levels of social stigma around disabilities in Egypt. However, the Appellant had pointed to some of the more extreme forms of mistreatment of people with disabilities in Egypt, such as teenage girls with intellectual impairments who were forcibly subjected to hysterectomies, and individuals with handicaps being ill-treated in detention after participating in protests. The RPD considered that physical and mental disabilities existed along a very wide range, with varying presentations. The Appellant's situation was distinguishable from many of the examples cited. For instance, he does not suffer from any intellectual impairments, nor did he require accessible public spaces, nor did his condition impact his speech, hearing, sight, or his ability to communicate with others. The RPD was not satisfied that the examples highlighted by the Appellant were persuasive evidence of how the Appellant would be treated. [13] The RPD nonetheless accepted that the Appellant had experienced emotional suffering due to the way that others had treated him in Egypt. He felt as if he did not belong. Particularly when he was younger, people used to call him names, and this made him feel different from others. The RPD noted that the mistreatment consisted of verbal insults, such as jeering and mockery, rather than physical forms of violent harm. [14] The Appellant emphasizes that emotional suffering, caused by verbal insults, may constitute discrimination. He argues that the proper question to ask is whether these acts were sufficiently repetitive or persistent. The Appellant believes that the RPD erred by dismissing his emotional suffering on the basis that it was not a physical form of harm. [15] I see no error in the RPD's assessment of the Appellant's emotional suffering. At no point did the RPD suggest that the harm had to be physical in order for the panel to consider whether it might amount to persecution, when considered in combination with other forms of mistreatment. In fact, the RPD specifically stated that the Appellant's experiences supported a finding that he faced discrimination on the basis of his physical handicap in Egypt. [16] As for the question of whether this type of treatment was persistent and repetitive enough to constitute a denial of a core human right, the Appellant provided very little evidence in this respect. The Appellant testified that people used to call him handicapped or disabled, and this affected him emotionally. When he was younger, he did not understand what this meant, but he came to understand what it meant as he grew up. When the RPD attempted to understand the extent of the Appellant's mistreatment in society and how he was treated with disrespect, the Appellant gave only two examples. He cited an incident when he first started his job at a company in Egypt when he was driving a XXXX XXXX A robber threatened him with a knife and took his money. When the Appellant reported this at the police station, the police scoffed at the fact that he had only lost XXXX Egyptian pounds. They prioritized a report from another complainant, who had lost his car. The Appellant considered it unfair that he was made to wait for the police chief. The second example was an incident in 1993 when the Appellant's low-income housing was given to earthquake survivors, which the RPD discussed in its assessment of the Appellant's access to housing. [17] The RPD correctly considered the Appellant's evidence about the verbal insults he received, and it factored this into its assessment of whether the treatment amounted cumulatively to persecution. Discrimination in employment situations [18] The RPD also considered the Appellant's evidence about his employment situation in Egypt and whether he would face discrimination in attempting to seek work upon his return. [19] According to his Schedule A form, the Appellant completed his accounting diploma in XXXX 1985 and about a year later he began to work for a state-owned company. He worked there from 1986 to 1998.6 The Appellant described that he was employed at the company through a special program for persons with disabilities. He complained that he was initially placed on light duties, which he considered were beneath his intellectual abilities. On his request, he was eventually transferred to a position in the marketing department that better suited his skills. The RPD took note of how the Appellant had been able to maintain employment for a significant period and moved up in his position without having to resort to extraordinary measures. He did not report any other problems with his employer. The company closed for financial reasons, and the Appellant was given compensation. The RPD did not see evidence of any workplace discrimination during the Appellant's 12 years with the state-owned company. [20] After being let go from his job, the Appellant considered the possibility of starting a business with the compensation he received from his company, but he feared being scammed and so he instead searched for employment. He could not find anyone to hire him. He stated that he was told that due to his age and his handicap, it would be difficult to find him a "normal" job in the government or in the private sector. The Appellant therefore moved to the United States in XXXX 2000. [21] The Appellant feared that he would not be able to find work in Egypt again due to the high level of unemployment, his age, and his physical handicap. However, to the RPD, the competitive labour market was not necessarily indicative of a situation of persecution, and the RPD found that even if there was some discrimination from Egyptian employers, the Appellant's past experiences did not support a finding that he would face such intense levels of discrimination that he would face persecutory treatment. The RPD acknowledged that, according to the objective country conditions evidence, disabled people in Egypt faced discrimination in employment both during recruitment and once employed. The RPD noted that, since the Appellant's departure from Egypt, there had been improvements in the legal situation, as a new Disability Rights Law of 2018 and constitutional amendments had been introduced. The laws provided guarantees of equal access to employment and employment quotas for companies to hire people with disabilities. The evidence also indicated that permanent disability benefits and family allowance benefits were available for people with disabilities. [22] The Appellant disputes the RPD's assessment of this factor. He highlights the fact that he had difficulties finding a job before he left Egypt, due to his age and his handicap. He believes that this experience is indicative of the difficulties he will face upon his return, especially given his age. The Appellant also challenges the RPD's comments about the lack of barriers for him to start his own business. The Appellant testified that he did not want to start his own business due to his fear of being scammed. This did not amount to an admission that there were no systemic barriers that would have prevented him from opening one. [23] As for the RPD's assessment of the country conditions, the Appellant disputes the RPD's statements about Egypt's Disability Rights Law. The Appellant argues that, given that this is a new law, the RPD was required to provide a detailed analysis of the evidence before determining that the law constituted a significant change in the situation for people with disabilities. The Appellant points to documentary evidence indicating that people with disabilities faced discrimination in employment, both during the recruitment process and in the workplace despite the adoption of the new law. The law does not include any enforcement or implementation measures beyond certain criminalizing provisions, which run contrary to the requirements of the Convention on the Rights of Persons with Disabilities ("CRPD") as well as the right to an effective remedy. The law provides for certain employment quotas for people with disabilities, as well as access to vocational training and employment, but the Egyptian government has failed to enforce such measures. [24] In addition, though permanent disability and family allowance benefits exist in Egypt, the Appellant argues that this cannot make up for the serious restrictions on one's right to earn a livelihood. [25] I see no error in the RPD's assessment. The RPD did not dispute the fact that the Appellant had experienced some level of discrimination in seeking employment prior to leaving Egypt, nor did the RPD deny that there would be some challenges for the Appellant upon his return. I also do not read the RPD's words to mean that the Appellant would not have faced any systemic barriers upon starting a business. Rather, the RPD only noted that there was nothing obvious about the Appellant's handicap that prevented this possibility, and it was a possibility that simply had not been explored. [26] However, as the RPD correctly noted, the Appellant's physical handicap was not the only factor at play in the Appellant's ability to find employment. There was, according to the Appellant, a very competitive labour market in Egypt. He described that Egyptians were migrating illegally by boat to Italy to find work. The Appellant reasoned that if they could not find work in Egypt, then he was at an even greater disadvantage. These conditions may make it more difficult for the Appellant to find employment, but the competitive labour market was not, in and of itself, evidence of persecutory conditions for people with disabilities. [27] I also do not believe the Appellant has properly interpreted the RPD's reasons. In my view, where the RPD referred to the improvements in the legal situation for people with disabilities, the RPD never made any determination that the laws, in practice, had resulted in changes that materially improved conditions on the ground. The RPD was presented with a challenging fact scenario. The Appellant provided very little information about the precise efforts he made to seek employment prior to leaving Egypt. This was understandable, as these events would have occurred many years ago. The Appellant has not been in Egypt since 2000, and the RPD was placed in a situation where it had to assess the likelihood of the Appellant experiencing discrimination from employers, in the absence of any recent evidence of the Appellant's efforts to seek employment in Egypt. [28] The RPD had to rely on the country conditions evidence; however, that evidence did not indicate that there has been a worsening of the situation since the Appellant's departure from Egypt. There was, unfortunately, very little detailed evidence about the treatment of people with disabilities, and particularly those with physical challenges that were similar to the Appellant's. It was reported that the absence of data on persons with disabilities made it difficult to assess the extent of discrimination, and also to assess the effectiveness of existing laws and policies.7 The Equal Rights Trust found that there were high levels of societal stigma surrounding disability in Egypt. Disability discrimination in employment was reportedly widespread, with individuals encountering difficulties in obtaining employment and facing discriminatory treatment from colleagues in the workplace.8 However, the Equal Rights Trust was only able to provide anecdotal accounts from a few individuals who reported negative experiences in the process of applying and interviewing for positions.9 [29] Most of the evidence spoke to the changes in the legal landscape. In April 2008, Egypt ratified the CRPD. The country has obligations under that international agreement as well as the regional African Charter on Human and Peoples' Rights ("ACHPR") to ensure the human rights of all persons without discrimination, including on the basis of disability.10 In 2014, a new Egyptian Constitution was also adopted, which guaranteed equal rights without discrimination on the basis of disability, including the guarantee that the state provide work opportunities and to allocate a percentage of work opportunities to people with disabilities.11 In 2018, the Disability Rights Law was introduced. The law contained provisions on equality and non-discrimination in employment, and it also provided for the establishment of a National Council for Persons with Disabilities, which was mandated to monitor compliance with the law.12 Article 20 of the Disability Rights Law requires the state to guarantee the right of persons with disabilities to obtain equal opportunities for work commensurate with their academic qualifications and vocational training. The law provided incentives for employers to recruit people with disabilities by providing tax breaks and benefits that rose in accordance with the number of people with disabilities that were employed. Quotas were also imposed for employers with more than 20 employees, requiring that 5% of all employees are persons with disabilities.13 [30] I acknowledge, as the Appellant states, that the evidence about the implementation of the new Disability Rights Law and the historic enforcement of such laws is not favourable. An Australian Department of Foreign Affairs and Trade ("DFAT") report indicates that authorities had not previously enforced employment quotas for people with disabilities.14 The United States Department of State ("USDOS") report for Egypt also indicated that the government did not effectively enforce prohibitions against discrimination in employment for persons with disabilities. The USDOS report indicated that authorities did not enforce the quota requirement and that companies often had people with disabilities on their payroll simply to meet the quota without actually employing them.15 [31] However, as the RPD stated, the new law represents an improvement in the attitudes of the authorities towards persons with disabilities. The RPD noted that the legal framework on disability discrimination was, in fact, stronger than that for other forms of discrimination. In addition, the evidence indicated that social security benefits were available for people with disabilities, creating a safety net for those unable to work.16 While not a substitute for effective anti-discrimination legislation, such protections on an individual's right to an adequate standard of living were relevant for the RPD to consider in assessing the potential prejudicial impact on the Appellant of any employment discrimination he might experience. [32] Ultimately, the RPD had to consider the Appellant's experience in Egypt in the workplace against the other evidence it had before it. The Appellant's experience, as someone who was relatively high-functioning, and who had enjoyed employment for many years in a state company through a special program, indicated that his own experience was not indicative of a situation of repetitive and persistent employment discrimination that had resulted in a violation of fundamental human rights. The RPD properly considered the possibility that he would nonetheless face challenges related to his handicap in the event that he returned to Egypt and sought employment. Discrimination in housing situations [33] The RPD also correctly considered the Appellant's description of the problems he faced with respect to housing in Egypt. [34] The Appellant was provided with low-income housing in Egypt, which was assigned to people with disabilities. However, in 1993, such housing was reallocated to earthquake survivors whose homes were destroyed. At the time, the Appellant spoke to the manager at the housing authority. It was explained to him that additional housing was not being built due to a lack of funds. Though some others with disabilities were able to keep their housing, the Appellant realized that it was because they were married. [35] However, the loss of subsidized housing did not render the Appellant homeless from 1993 to 2000. The Appellant was able to secure other housing, and he testified that his condominium in Egypt was now being occupied by his sisters and his mother. The Appellant complained that he could not live with his mother and sisters because this would affect his prospects for marriage. He explained that no one would want to live with him and his family in that home. [36] Considering his statements, the RPD found that some of the decisions involved in the reallocation of housing were discriminatory. However, the RPD also considered that the Appellant would be able to secure adequate housing in the event of his return to Egypt, and there was nothing to indicate that his family would refuse to take him in or otherwise refuse to assist him. The Appellant has not challenged this finding, and I agree with the RPD's assessment. He did not allege that he required any special accommodations due to his physical handicap. Therefore, even though the Appellant's Counsel referred to challenges with accessibility in buildings, the RPD correctly found that this did not apply to the Appellant's situation. The Appellant did not demonstrate that he would face discrimination in the housing context, and he did not show that his right to adequate housing would be compromised. Discrimination in access to healthcare [37] The final issue considered by the RPD was the risk of discrimination in accessing healthcare. I again see no error in the RPD's assessment. [38] The RPD acknowledged that, according to the evidence, healthcare services for disabled people in Egypt was inadequate. Government-sponsored physical rehabilitation existed, but it reached less than 5% of the disabled population. It was reported that people with disabilities were not given equal access to healthcare, and that there were insufficient rehabilitation services. The Appellant described that the services he was receiving in Canada would not be available in Egypt. He testified that this was because such services were generally not available. They were not being withheld out of a contempt or neglect of the disabled population. In Canada, the Appellant was able to receive XXXX and he was waiting to receive an XXXX. However, the RPD found that he had not demonstrated that the lack of such services in Egypt would be seriously prejudicial to him. The Appellant's XXXX in Canada referred to how his treatment was optimizing his functioning and that an XXXX might improve his quality of life, but the Appellant did not establish that these were required to maintain his basic daily functioning. The RPD noted that the Appellant had lived with his physical handicap for most of his life, and that if such services were a pressing need, this need would have been documented. [39] Considering this evidence, the RPD did not believe that there would be a denial of necessary medical care on the basis of the Appellant's status as a person with a physical handicap. In addition, the Appellant did not establish that the lack of rehabilitation services was seriously prejudicial to him. [40] The Appellant challenges this finding. He says that the distinction between services being unavailable or being withheld was an irrelevant difference, as the documentary evidence is clear that such services are unavailable because disabled people in Egypt are not given equal access to existing medical services. In this regard, the Appellant highlights a passage from the Equal Rights Trust report at item 2.9 of the National Documentation Package for Egypt. The Appellant emphasizes that government-owned treatment centres for people with disabilities were generally of poor quality. [41] The Appellant also argues that the RPD should have considered the context of the COVID-19 pandemic and how this has aggravated his circumstances. The Appellant submitted evidence about individuals with special needs who were unable to secure appropriate medical assistance for COVID-19, who were told that they needed to be treated at home. [42] I am unpersuaded by these arguments. There is little evidence to support the Appellant's position that the shortage of resources and services for people with disabilities were the result of discriminatory policies or attitudes. The World Bank classifies Egypt as a lower-middle income country. An economic downturn resulted in austerity measures, including a reduction on overall healthcare spending by the Egyptian government. The government lacked the resources to provide high-quality health services.17 The report from the Equal Rights Trust, which the Appellant cites, merely states the following: Article 18 of the Constitution provides that the state shall guarantee the health of all persons with disabilities. However, evidence suggests that healthcare for the disabled populations in Egypt is inadequate; they are not granted equal access to existing medical services to treat disabilities and there are also insufficient rehabilitation services to help them regain their functionality.18 [43] This general statement, without any further information, is insufficient to establish that the services that the Appellant requires are unavailable due to discriminatory policies or attitudes. Moreover, the Appellant has not addressed the RPD's finding about the Appellant's failure to demonstrate his need for certain services to maintain his level of functioning. While some of the services he has received in Canada may improve his quality of life, the Appellant has shown that he has maintained a high level of physical function for many years even in the absence of those services. [44] With respect to the impact of the COVID-19 pandemic, I am not satisfied that the RPD failed to consider the evidence. At the hearing, the RPD specifically invited the Appellant to provide evidence on the impact of the pandemic on his claim. Only one piece of evidence in the Appellant's disclosure addressed this issue: an article from Ahram Online, dated September 21, 2020.19 That article discussed how the COVID-19 situation was even more complicated for people with disabilities, as they may have more healthcare needs than others. One person interviewed in the article stated that his sister, who had a mental disability, passed away from COVID-19 after his family was unable to secure appropriate medical assistance for her. They were not able to find a hospital bed for her, as they were told that those with special needs, especially those with serious mental disabilities, had to be treated at home. The article also discussed how a government ministry had launched a mobile phone application to allow hearing and speech-impaired people to access information on COVID-19 and reach necessary health services. The article falls far short of establishing that people with physical handicaps like the Appellant's are being refused COVID-19 treatment in Egyptian hospitals. The Appellant does not suffer from any condition that would prevent him from being treated in a hospital, nor does he have any condition that would impede his ability to access information and treatment. The evidence does not establish that the Appellant would be unable to access medical treatment as a result of the pandemic. [45] Though the level and quality of healthcare treatment falls below the standards available in Canada, I am not satisfied that the Appellant's right to adequate healthcare would be seriously compromised as a result of discriminatory treatment in the event of his return to Egypt. No serious possibility of cumulative discrimination amounting to persecution [46] In summary, the RPD correctly considered several factors in assessing whether the Appellant faces cumulative discrimination amounting to persecution in Egypt. Like the RPD, I recognize that there is social stigma around disabilities in Egyptian society, and that the Appellant may be subjected to some verbal comments and harassment. It is also likely that he will face additional challenges in seeking employment that are not faced by others in Egypt. However, the Appellant is relatively well-educated and he possesses English language skills. His handicap does not keep him from being employed even in physically demanding positions, and he does not require special accommodations. He was able to maintain employment for lengthy periods of time in Egypt and the United States. In addition, the Appellant has the benefit of the support of his family, who live in his former home. He expressed a strong desire to be reunited with them. His right to adequate housing is unlikely to be compromised. As for the possibility of discrimination in accessing healthcare, the Appellant was unable to demonstrate that he would be denied necessary medical care in Egypt on the basis of his physical handicap. [47] The Appellant has experienced discrimination in Egypt, but it has not been so serious, repetitive, or systematic as to constitute a denial of core human rights when considered cumulatively. The country conditions evidence also does not support his view that his return to Egypt would result in cumulative discrimination amounting to persecution. b) Whether the RPD erred in its assessment of the Appellant's subjective fear [48] The RPD also discussed the Appellant's actions in the U.S., and how they were indicative of a lack of subjective fear. The Appellant argues that the RPD did not consider his reasonable explanations for his failure to seek asylum in the United States. He also argues that the RPD erroneously imported its subjective fear analysis into its assessment of cumulative discrimination. I disagree with the Appellant. I reach the same conclusion as the RPD. [49] There are three issues to examine with respect to the Appellant's immigration history: i. The Appellant's failure to seek asylum when he first went to the U.S.; ii. The Appellant's lack of engagement with his pending application in the U.S. and his decision to abandon that application; and iii. The Appellant's lack of subjective fear and its impact on the RPD's assessment of whether the discrimination he experienced in Egypt amounted cumulatively to persecution. [50] Failure to seek asylum: Despite arriving in the U.S. in XXXX 2000 claiming that he felt physically and emotionally unsafe in Egypt due to his mistreatment there, the Appellant did not seek asylum. The Appellant claimed that he was unaware that he could apply for asylum in the U.S., and by the time he discovered this possibility, it was too late. The RPD rejected this explanation. The panel noted that the Appellant had demonstrated a history of asserting his rights in relation to his physical handicap, such as with his employer and with the housing authority. The RPD did not believe that the Appellant would fail to inform himself of his rights to seek asylum when he arrived in the U.S. as a visitor. This was inconsistent with his allegations that he left Egypt because he felt physically and emotionally unsafe due to his mistreatment there. [51] The Appellant submits that his failure to seek asylum in the U.S. should not be fatal to his claim, as the jurisprudence suggests that delays in seeking protection should not be treated as determinative. Rather, a delay may be a factor to take into account when assessing a claimant's credibility. The Appellant emphasizes that he provided a reasonable explanation for the delay. He concedes that he did not go to the U.S. with the intention to seek asylum. Rather, he went as a visitor, and he did not know that he could apply for asylum. By the time he learned of this option, it was too late. [52] Pending immigration application: The RPD noted that the Appellant's first attempts to regularize his status occurred in 2005. At that time, the Appellant had a casual chat with someone, who told him about the option of applying for a waiver from deportation. The application was unsuccessful for unknown reasons. It seems that some time also around 2005, the Appellant applied for permanent residence in the United States. The Minister of Citizenship and Immigration, who intervened in the Appellant's claim, indicated that an employment authorization document was issued to the Appellant in XXXX 2005, as a result of an application to adjust his status.20 The Appellant explained that he was assaulted in the U.S. during an extortion attempt. This allowed him to apply under a program for people who assist law enforcement in the investigation or prosecution of criminal activity. The Appellant claims that he never received any answer from U.S. immigration officials on his application. An interview is mentioned in some of his documents, which was supposed to have taken place in XXXX 2015, but the Appellant could not recall if he attended it. [53] The RPD considered that, by abandoning his pending application in the U.S. and coming to Canada, the Appellant demonstrated a lack of subjective fear. The panel found it reasonable to expect that he would fully engage with the permanent residence application. However, despite having the application pending for 15 years, the Appellant knew very little about the reason for the delay, he had no information about processing times, he did not instruct his American immigration lawyer to seek this information, and it was not credible that his immigration lawyer would not know the reasons for the lengthy delay. The RPD concluded that the failure to seek asylum and the abandonment of his pending application were both incompatible with his alleged fear of persecution. [54] The Appellant disputes the RPD's reasons. He highlights the fact that he sought, on multiple occasions, to obtain status during his time in the United States. The only reason why he left was because he feared that he would be deported by the Trump administration. He made efforts to resolve his pending application, by retaining an immigration lawyer. He explains that he could not provide any further information from his lawyer because she told him that since he had moved to Canada, she would not obtain any more documents for him and he was on his own. The Appellant argues that these are reasonable explanations, and that his actions are consistent with a fear of persecution. [55] Impact on assessment of cumulative discrimination: The Appellant also argues that the RPD erroneously imported its subjective fear analysis into its assessment of whether he faces cumulative discrimination amounting to persecution. The RPD believed that if the Appellant's treatment in Egypt had been so serious and prejudicial, he would have sought protection when he arrived in the United States. [56] I am not persuaded that the RPD erred in its reasons. [57] I agree with the Appellant that a delay in claiming should, generally speaking, not be treated as determinative of a claim for refugee protection. However, the RPD did not treat the delay as determinative. It properly treated this as one factor, among others, in its analysis. The Appellant's Basis of Claim form stated: This made me feel physically and emotionally unsafe in Egypt. I longed for the day I would be able to live in a place where I would be treated like everyone else, where I would not be harassed, discriminated against and mistreated simply because of my physical challenge. When I got the chance to go to the United States, I was exited [sic] because I knew I would not come back to Egypt, a place where I was regularly harmed owing to my medical and physical condition.21 [58] Despite how the Appellant went to the U.S. with no intention of ever returning to Egypt, the Appellant arrived there as a visitor with no apparent plan to regularize his status. His visitor status would have expired within several months, after which he would have risked removal back to Egypt. The Appellant described that his first attempt to regularize his status was in 2005, when he had a discussion with someone at a coffee shop about the possibility of applying under a waiver program. By the time the Appellant took any action to regularize his status, he discovered that he was no longer eligible to apply for asylum. The Appellant, however, is not an unsophisticated person. He obtained a post-secondary level of education, he worked in marketing for a state-owned company, and the RPD noted that he had demonstrated a history of knowing and asserting his rights. I agree with the RPD that if the Appellant genuinely feared returning to Egypt, it was not credible that he would have allowed so much time to pass before informing himself of the options to remain. The Appellant's inaction is not consistent with his allegation that he felt physically and emotionally unsafe in Egypt. [59] It is true that the Appellant eventually retained a U.S. immigration lawyer; however, as the RPD mentioned, relatively little was done over the course of 18 years. The Appellant's application under a waiver program only arose because of a casual chat with someone at a coffee shop in 2005. In addition, despite applying for permanent residence in 2005, the Appellant had little knowledge of the problems that were delaying his application. He could not even recall whether he attended his immigration interview. In the end, the Appellant chose to abandon his pending U.S. application in favour of an unfamiliar refugee process in Canada. The Appellant's actions are reflective of a rather casual attitude towards his ability to remain in the U.S., and the RPD correctly found that this was not consistent with the actions of a person who feared returning to a situation in Egypt that he considered to be persecutory. [60] As for the relevance of this analysis to the question of cumulative discrimination, I do not agree with the Appellant that the matters are entirely unconnected. If the Appellant felt that he was experiencing serious and repetitive incidents of discrimination that had cumulatively resulted in a situation that was persecutory, one would expect that he would have sought information in order to remain in the U.S., away from the situation that he claimed was unbearable. The Appellant's subjective experience of his treatment was relevant, and it properly informed the RPD's assessment of his emotional suffering and the extent of the social stigma that he claimed to have experienced. The RPD correctly concluded that the Appellant's actions undermined his subjective fear. CONCLUSION [61] For the above reasons, I agree with the RPD's analysis. The Appellant does not face a serious possibility of cumulative discrimination amounting to persecution. This is dispositive of his claim under section 96 of the IRPA. The facts do not support a claim under section 97. The Appellant has not demonstrated, on a balance of probabilities, that he faces a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment in Egypt. I therefore confirm the RPD's negative decision. The Appellant is neither a Convention refugee, nor a person in need of protection. [62] The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) M. Oh M. Oh September 28, 2021 Date 1 Immigration and Refugee Protection Act (IRPA"), S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 3 Ranjha v. Canada (Minister of Citizenship and Immigration), 2003 FCT 637; see also Portuondo Vasallo v. Canada (Citizenship and Immigration), 2012 FC 673, at para. 15. 4 Sefa v. Canada (Citizenship and Immigration), 2010 FC 1190, at para. 10. 5 Mete v. Canada (Minister of Citizenship and Immigration), 2005 FC 840, at paras. 5-6. 6 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule A form, at p. 50. 7 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Egypt (October 30, 2020), item 2.9, at p. 40. 8 Ibid., at pp. 264 and 273. 9 Ibid., at p. 274. 10 Ibid., at p. 262. 11 Ibid., at pp. 265-266. 12 Ibid., at p. 268. 13 Ibid., at pp. 272-273. 14 Ibid., item 1.4, at section 2.19. 15 Ibid., item 2.1. 16 Ibid., item 2.9, at pp. 98-99 and 268-269. 17 Ibid., item 1.8. 18 Ibid., item 2.9, at p. 279. 19 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 126-130. 20 Ibid., Exhibit 4, Minister's intervention, at p. 80. 21 Ibid., Exhibit 2, Basis of Claim form, at p. 32. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC1-01128 RAD.25.02 (May 19, 2021) Disponible en français 2 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 (May 19, 2021) Disponible en français