MB9-08336

RAD File No. / No de dossier de la SAR : MB9-08336 MB9-08337 / MB9-08338 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision February 19, 2020 Date de la décision Panel Pascale Aubin Tribunal Counsel for the persons who are the subject of the appeal Jamal Addine Fraygui Conseil des personnes en cause Designated representative

XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX XXXX (principal appellant), XXXX XXXX XXXX XXXX, (associate appellant), citizens of Haiti, and XXXX XXXX XXXX XXXX (minor associate appellant), a citizen of Haiti and Brazil, are appealing against the decision of the Refugee Protection Division (RPD) dated April 8, 2019, rejecting their claims for refugee protection. [2] In February 2012, the principal appellant allegedly witnessed a kidnapping in Haiti that he reported to the police, leading to the arrest of members of a criminal group. In July 2012, the principal male appellant was apparently attacked by criminals. When he found out that the criminals had escaped prison, he left Haiti in XXXX 2012 and went to Brazil, where he lived for three years. [3] In November 2013, the associate appellant was reportedly raped, beaten and injured by armed criminals. She stated that they were the same criminals. She also stated that she complained to the police but did not receive any help. The associate appellant moved out of the city to seek refuge. She apparently received telephone threats. In December 2013, the associate appellant left for Brazil, where she spent two-and-a-half years. [4] The appellants allege that they were victims of racism in that the Brazilian authorities refused to register their daughter's first name on her birth certificate. They also allege having been victims of the attempted kidnapping of their daughter. In 2016, the appellants left Brazil and relocated to the United States before travelling on to Canada.

APPLICABLE STANDARD OF REVIEW [5] In matters concerning questions of fact, questions of mixed law and fact, and questions of law, the Refugee Appeal Division (RAD) applies the correctness standard. When assessing the credibility of the oral evidence, the RAD may grant deference in situations where the RPD enjoys a meaningful advantage. Unless otherwise indicated in my reasons, I am applying the standard of correctness to all my findings.

ANALYSIS [6] The RPD concluded that the adult appellants are persons referred to in Article 1E of the Convention. In analyzing whether the exclusion clause is applicable, the RPD correctly relied on Zeng,1 which prescribes the following exclusion test under Article 1E of the Convention: Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts. [7] I note that the adult appellants are not challenging the RPD's conclusion that they had permanent residence status in Brazil and that as such, they had the rights and duties associated with citizenship within the meaning of Article 1E of the Convention. In their memorandum, the appellants argue instead that the RPD erred

in concluding that they still had permanent resident status in Brazil. [8] The appellants' testimony, the immigration forms completed by the adult appellants, the appearance of their names on a list of Haitian nationals whom permanent residence had been granted to, the stamp in the principal male appellant's passport indicating that he had been registered as a permanent resident on March 24, 2015, and the visa shows prima facie that at the time of the hearing before the RPD, the adult appellants had permanent resident status in Brazil. [9] Contrary to the adult appellants' arguments, the RPD held in paragraph 28 of its reasons that the adult claimants were no longer permanent residents of Brazil at the time of the hearing before the RPD, as they had been outside of Brazil for more than two years. I am of the opinion that the RPD did not err in concluding that the adult appellants are persons referred to in Article 1E of the Convention. [10] The birth certificate and passport of the minor associate appellant indicate that she is a citizen of Haiti and Brazil, and so the question of exclusion does not apply to the minor associate appellant. Criteria in Zeng [11] According to Zeng, a claimant may be excluded under Article 1E of the Convention even if he has lost his status in a third country. The panel has a duty to analyze the following factors before making a finding of

exclusion. Reason for loss of status in Brazil Discrimination versus persecution [12] The RPD found that the appellants were not credible concerning their alleged fears in Brazil and that the discrimination which they were subjected to in Brazil did not amount to persecution. The RPD concluded that the appellants failed to establish that their situation in Brazil was such that it could be considered the cause of their involuntary loss of status. [13] More specifically, the RPD noted that it is unlikely that the associate appellant would return to work the day following the alleged kidnapping of her daughter at the same place employing the person whom she fears and who kidnapped her daughter at the daycare. The RPD considers that the acts of not informing her employer or the police and not joining her husband in another city constitute behaviour that is inconsistent with that of someone who fears for herself and her daughter. [14] In the memorandum, the adult associate appellant maintains that she acknowledges having acted as described in the RPD's reasons but adds that although she regrets her actions, it was how she felt at the time of the events. She argues that she was afraid of conflict. The associate appellant argues further that her refusal to inform the employer was a way of keeping the incident between her and her predator to avoid exacerbating the situation. The

appellants state that as they were distraught, they did not take any other particular precautions. [15] During her testimony, the associate appellant explained that on February 11, 2016, a co-worker who accompanied her to the daycare kidnapped her daughter and that someone on a motorcycle managed to pass and stop the vehicle. The associate appellant testified that her co-worker then returned the minor child to her. She went on to testify that when she went back to work the next day, she again saw the co-worker who kidnapped her daughter. When questioned by the RPD as to whether she had informed her employer, she said that she had not because she feared that [translation] "this would make things worse." She continued working at the same place until March 2016. [16] After listening carefully to the recording of the hearing and analyzing the entire record in this case, I agree with the RPD's credibility findings with respect to the kidnapping of the minor associate appellant, as fear of exacerbating the situation, wanting to avoid conflict and feeling distraught do not explain the appellants' inaction in protecting their daughter. In a situation of this nature, I would have expected the parents to take steps to seek safety and ensure their daughter's safety, which they failed to do. Moreover, this inaction is inconsistent with fearing for their lives or that of their daughter,

which undermines the adult appellants' credibility. [17] Like the RPD, I am of the opinion that returning to work the following day at the same place where the person who kidnapped her daughter worked, working there for more than a month following the incident, not going to the police and not going to be with her husband staying an hour outside of the city are inconsistent with the behaviour of someone who fears for her life. [18] I am also of the opinion that the fact that the principal appellant also failed to take measures to better protect his family following this alleged kidnapping is inconsistent with the behaviour of someone who fears for his family's lives. For these reasons, I am of the opinion that the RPD did not err in finding that the adult appellants were not credible concerning the alleged risks in Brazil. [19] The adult appellants argue further that they were persecuted by the Brazilian authorities in that they refused to register the minor child's name on her birth certificate. [20] At the hearing, the adult appellants testified about the problems they experienced in Brazil. Apart from the two aforementioned incidents, which the RPD did not consider, when questioned by the RPD as to whether they had been subjected to other acts of racism or threats in Brazil, the adult appellants responded that they had not. [21] To determine whether the discrimination to

which the appellants would be subjected if they were to return to Brazil cumulatively amounted to persecution, I considered paragraphs 51 to 55 of the Handbook on Procedures and Criteria for Determining Refugee Status of the United Nations High Commissioner for Refugees (UNHCR Handbook), the case law, the adult appellants' testimony and the documentary evidence. [22] Paragraph 54 of the UNHCR Handbook provides as follows: Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. [23] According to the case law, persecution requires an affliction of repeated acts of cruelty or a particular course or period of systematic infliction of punishment.2 Discriminatory acts may constitute persecution where those acts are "sufficiently serious and occur over such a long period of time that it can be said that the claimants' physical or moral

integrity is threatened."3 [24] In their memorandum, the appellants allege that they could no longer stay in Brazil due to the attempted kidnapping of their daughter, as well as their fear of being subjected to racism due to the refusal of a Brazilian government employee to register the first name they wanted to give their daughter. [25] I considered the fact that the Special Rapporteur of the United Nations was "concerned about the levels of violence with a racial dimension."4 As for racial discrimination in Brazil, I also considered the Country Report on Human Rights Practices, which states as follows: The law prohibits racial discrimination, specifically the denial of public or private facilities, employment, or housing to anyone based on race. The law also prohibits the incitement of racial discrimination or prejudice and the dissemination of racially offensive symbols and epithets, and it stipulates prison terms for such acts.5 [26] However, this document also indicates that dark-skinned persons, particularly Afro-Brazilians, are frequently discriminated against.6 As for access to basic rights, the Country Report on Human Rights Practices indicates that Haitian workers have reported being subjected to discrimination in the workplace.7 However, it cannot be concluded from the documentary evidence8 that Haitians holding permanent residence in Brazil would be subjected to

restrictions affecting employment and the right to education. [27] In light of this documentary evidence and the appellants' testimony indicating that they did not have any other problems in Brazil apart from the two aforementioned incidents, I am of the opinion that even if the Brazilian authorities refused to register the name, this is not in itself sufficient to constitute persecution. [28] Taken as a whole, the documentary evidence shows the existence of racial discrimination and racism in Brazil. With respect to the appellants' situation in Brazil, they worked, were able to find housing and had access to daycare services. [29] It cannot be concluded based on the evidence on the record that the problems encountered by the appellants in Brazil amount to persecution within the meaning of the Convention, even cumulatively, or that there is a serious possibility that the appellants would be subjected to persecution based on one of the five Convention grounds should they return to Brazil. Voluntary loss of status [30] Being granted permanent status requires effort to keep it in force. As long as it is, the resident shows a continuing interest in residing permanently in the host country. Leaving the country for longer than a prescribed period without a legally recognized reason results in the forfeiture of the right that was granted by Brazil. [31] Having had permanent resident

status, the appellant's status could have been maintained, and if it was not possible for them to do so because they were outside the country, it was as a result of their own actions that the appellants jeopardized their status. [32] Considering that the reasons for leaving Brazil did not amount to persecution, I consequently agree with the RPD that the adult appellants left Brazil voluntarily and chose to remain outside of the country for more than two years. The loss of their permanent resident status was therefore voluntary. The RPD did not err. Possibility of returning to the third country - Brazil [33] The RPD held that the adult appellants will be unable to re-enter Brazil as permanent residents, and I note that this conclusion was not challenged. Risk in the country of origin - Haiti Principal appellant's testimony about kidnapping [34] The RPD rejected the principal appellant's testimony that he witnessed the kidnapping of a little girl of three by three individuals and reported this kidnapping to the police. The RPD concluded further that the allegation that the police had betrayed him was no more than conjecture. The RPD considered that it was unreasonable for the principal appellant not to produce a police report or to have made no effort to obtain that document. [35] In the memorandum, the appellants argue that the documentary evidence refers to the level of

corruption within the Haitian police force and that it was not impossible that the Haitian police officers disclosed information to the criminals. They also argue that they are not required to provide evidence of everything they allege and that they submitted extracts from registry minutes and a medical certificate supporting some of his allegations. [36] Although the appellants mention documentary evidence in relation to Haitian police corruption, the documentary evidence is not cited in the memorandum. Nevertheless, I analyzed the objective evidence on Haiti, and I am of the opinion that although it is possible in some cases that the police disclose information to criminals, considering that the criminals were arrested and that there is no other information on the record concerning this alleged sharing of information, I cannot conclude, on a balance of probabilities, based on the evidence on the record that the police betrayed him by sharing information with the criminals. [37] Moreover, given that reporting the incident to the police is a central element in his decision to leave Haiti for the sake of his life, I would have expected him to produce a police report, since he alleges that he reported this event to the police, or to at least produce some form of evidence documenting his efforts to obtain the report in question, but he did not do so. For these reasons, I am of the

opinion that the RPD was correct in finding that it was not credible that the principal male appellant witnessed a kidnapping or that he reported this incident to the police. [38] The principal male appellant argues that after he reported the incident to the police, they investigated and identified members of this group. He argues that since he was responsible for the arrest of certain members, they will find and kill him if he returns to Haiti. The appellants argue that they filed documents supporting some of the allegations and that the RPD erred in dismissing them. I did examine the principal male appellant's medical certificate (P-8) dated July 16, 2012. I note that it indicates [translation] "General examination of XXXX XXXX XXXX revealed that his health is not stable; he has a certain anomaly affecting the abdomen and legs...." Even the medical certificate itself makes clear that this was a general examination, and although the medical certificate does document certain anomalies affecting the legs and abdomen, this certificate gives no indication that these anomalies are related to an attack by armed criminals at his home. For these reasons, I am of the opinion that the RPD did not err in not assigning any probative value to this medical certificate, and I give it no weight. [39] The extract from the registry minutes (P-7) documents the attack on July 15, 2016. Based on

the document's general appearance, I have no reason to doubt its authenticity. That being said, the extract refers to an assault perpetrated against the principal male appellant by unidentified armed criminals. There is nothing in this report to indicate that it concerns the same criminals reported in relation to the witnessed kidnapping. Unlike the RPD, I am of the opinion that this document has probative value in that it establishes the fact that an attack took place. However, for the reason provided above, I give little weight to this document. [40] Exhibit P-12 is a photograph of the principal male appellant showing blood on his face. Although this photograph does show blood on his face, there is nothing about the photograph to show that it was taken following the alleged attack on July 15, 2016. In fact, the extract from the registry minutes indicates that [translation] "the body was covered in blood, marks from a beating were visible on the face and injuries were noted up and down the legs." I am of the opinion that the RPD did not err in giving no probative value to this photograph and that its conclusion is correct. Associate appellant's testimony about the alleged rape [41] The appellants argue that the RPD erred in finding the associate appellant to be not credible with regard to being the victim of rape and in giving no probative value to exhibits P-4 and P-5. The

appellants argue that she is not the author and consequently cannot be held responsible for the wording or any errors and that the information provided corroborates some of the associate appellant's allegations. [42] I cannot accept the appellants' arguments with respect to the associate appellant's testimony concerning the alleged rape and the medical certificate (P-4) and the registry minutes related to this event (P-5). I concur with the RPD's analysis; although the associate appellant may not be the author of this certificate, this does not compensate for the fact that the word "phone" is printed on the certificate and that the language used contains errors, whereas the official languages of Haiti are French and Creole. [43] Additionally, after analyzing Exhibit P-5, I note that the registry minutes are dated November 21 and that the justices of the peace questioned them on that same day. As set out in the document, she states that [translation] "the incident occurred last evening," whereas the medical certificate indicates that she was in a coma for five days from July 16 to July 21. For all these reasons, I do not give any weight to these documents. [44] The RPD identified inconsistencies between their Basis of Claim Forms (BOC Forms) and their testimonies. It offered every opportunity to provide any necessary clarifications, which they did not do either. Under the

circumstances, I consider that the finding of non-credibility based on the facts as alleged was correct. For these reasons, I am of the opinion that the appellants failed to establish that there was a serious possibility of persecution on a Convention ground if they were to return to Haiti or, on a balance of probabilities, one of the risks set out in section 97 of the Immigration and Refugee Protection Act (IRPA). Residual risk - Paragraphs 82-95 of the Refugee Protection Division [45] The RPD analyzed the female appellants' prospective risk as women and found that in light of the associate appellant's lack of credibility with regard to being raped, injured and beaten, the evidence provides no basis to conclude that there is a serious possibility of persecution if they were to return to Haiti. [46] The associate appellant alleges that the factors concerning her subjective fear of violence against her were assessed incorrectly by the RPD. The principal female appellant argues that she and her daughter would be persons targeted for violence as women in Haiti regarding the allegations concerning the criminal group seeking vengeance in relation to her husband. [47] After assessing the entire documentary evidence and considering the personal and family situation of the associate appellant and the minor appellant as well as Chairperson's Guideline 4: Women Refugee Claimants Fearing

Gender-Related Persecution9 (Guideline), I am of the opinion that the female appellants failed to establish a serious possibility of gender-related persecution if they were to return to Haiti. [48] The Guideline on Gender-Related Persecution specifies that the decision-maker is to consider all relevant factors, including the cultural, religious and economic context. The framework of analysis suggested by the Guideline mentions that "the gender-defined group cannot be defined solely by the fact that its members share common persecution." In Dezameau, Justice Pinard stated that: This is not to say that membership in a particular social group is sufficient to result in a finding of persecution. The evidence provided by the applicant must still satisfy the Board that there is a risk of harm which is sufficiently serious and whose occurrence is [translation] "more than a mere possibility. As such, the female appellants' situation must be examined objectively alongside the documentary evidence and the facts specific to their case. [49] I consider it incorrect to claim that the documentary evidence found in the National Documentation Package (NDP) on Haiti establishes that all Haitian women are subjected to a serious possibility of being victims of violence. This evidence establishes that violence against women in Haiti is a widespread phenomenon, but the risk is not the same for all

women. The personal circumstances in which they find themselves can have an impact on the degree of risk.10 I consider the factors identified by the RPD in paragraphs 82 to 95 of its decision to be entirely relevant in assessing the degree of risk that the female appellants face. [50] In Josile,11 the Federal Court emphasizes the importance of considering "the applicant's personal situation (whether she will be accompanied by a spouse or living with family) if returned to Haiti." The female appellant has multiple family members in Haiti with whom she could live, as was the case before she left the country. The evidence on the record does not establish that she was the victim of violence or that the alleged incident was related to the fact that she is a woman rather than to her connection with her fiancé. [51] According to her BOC Form, the associate appellant's personal situation indicates that she is a 35-year-old woman with 21 years of schooling who has completed 4 years of university study in XXXX. Additionally, the associate appellant noted in her BOC Form that she still had multiple family members in Haiti, among them her parents, sisters and brothers. I note that the associate appellant is a resourceful, educated person who has also worked in Brazil and during her stay in the United States. [52] I considered the objective documentary evidence concerning the situation of

single women living in Haiti as described in the NDP.12 Based on this documentary evidence, women facing a serious possibility of persecution include those who are uneducated, have low income and have no male protection or family support. Taking into account her education, employment history and family network, I conclude that the female appellant's profile is not that of a woman without support, guidance or family presence. As such, the principal female appellant's personal situation does not correspond to that of a woman facing a serious possibility of gender-related persecution. [53] In the circumstances, I consider that the evidence does not establish that the associate appellant is subjected to a serious possibility of persecution on one of the grounds listed in section 96 of the IRPA, notably as a member of the particular social group of women. [54] The associate appellant also has a minor daughter. Overall, however, the evidence is contradictory in many respects, and the appellants' account of the alleged violent events was not found to be credible. Being born to two Haitian parents, the minor appellant has Haitian citizenship. She is consequently in the same situation as the associate appellant, and if she returns to Haiti, she will have both her parents, access to school and family support. Taking into consideration the education, employment history and family network

of the principal female appellant and the fact that the minor appellant's claim relies entirely on that of her parents, I conclude that the minor appellant's profile is not that of a woman without support, guidance or family presence. [55] While I am sensitive to the prevailing situation in Haiti, I nevertheless conclude that the female appellants have failed to establish a serious possibility of persecution based on membership in a particular social group of women should they return to Haiti. [56] Considering that the adult appellants lost their permanent resident status voluntarily, that they do not have the right to return to Brazil and that there is no risk in Haiti or in Brazil, and after weighing all the relevant factors in Zeng, I consider that the adult appellants are excluded under Article 1E of the Convention. Minor appellant [57] The minor appellant has Haitian and Brazilian citizenship. She based her claim on her father's allegations. The minor appellant's claim relies entirely on her father's claim. Because the adult appellants are not credible and there is no serious possibility of persecution as members of the particular social group of women in Haiti, they failed to discharge their burden of proof with regard to establishing that there is a serious possibility that they will be persecuted on a Convention ground. They have also failed to show, on a balance of

probabilities, that if they were to return to Haiti, they would be subjected personally to a danger of torture or to a risk to their lives or to a risk of cruel and unusual treatment or punishment. Therefore, the minor appellant is neither a Convention refugee nor a person in need of protection. [58] In this case, after analyzing the entire evidence, reading the RPD decision, listening to the recording of the hearing and considering the arguments presented on appeal, I am of the opinion that the correct decision was to reject the claim for refugee protection.

CONCLUSION [59] The RAD dismisses the appeal and confirms the determination that the appellants are neither Convention refugees nor persons in need of protection pursuant to subsection 111(1)(a) of the IRPA. [60] The appeal is dismissed. (signed) "Pascale Aubin" Pascale Aubin February 19, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. 2 Bandula v. (Minister of Citizenship and Immigration), 2003 FC 1062; Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (C.A.); Rajudeen v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 601 (C.A.). 3 Ibid. 4 Supra, endnote 15, National Documentation Package (NDP) on Brazil, January 31, 2018, Tab 2.8. 5 NDP on Brazil, January 31, 2018, Tab 2.1: United States. Department of State. Brazil. Country Reports on Human Rights Practices for 2016. 6 Ibid. 7 Supra, endnote 35. 8 NDP on Brazil, January 31, 2018. 9 IRB, Chairperson's Guideline 4:Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa. Effective date: November 13, 1996. 10 NDP on Haiti, April 30, 2018, tabs 2.3, 2.7, 5.1 and 5.3. 11 Josile v. Canada (Citizenship and Immigration), 2011 FC 39. 12 NDP on Haiti, April 30, 2018, Tab 5.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-08336 MB9-08337 / MB9-08338 RAD.25.02 (April 4, 2019) Disponible en français 12 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 (April 4, 2019) Disponible en français