MC3-04018

RAD File / Dossier de la SAR : MC3-04018 MC3-04019 / MC3-04020 / MC3-04021 MC3-04022 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Date of decision September 19, 2023 Date de la décision Panel Philippe Rabot Tribunal Counsel for the persons who are the subject of the appeal Eduardo Matos Oliveira 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] These five appeals pertain to members of the same family. Four of the five Appellants are citizens of Angola. They are XXXX XXXX XXXX ("the Principal Appellant"), his spouse, XXXX XXXX (the "Associate Appellant") and two of their children, XXXX XXXX XXXX XXXX (XXXX) and XXXX XXXX XXXX XXXX (XXXX). The fifth Appellant is a younger child, XXXX XXXX XXXX (XXXX). He is a citizen of Brazil, where the Appellants lived for several years after fleeing Angola due to alleged political persecution. [2] While the Refugee Protection Division (RPD) acknowledged that the Appellants provided credible evidence about persecution they experienced in Angola, it found they were excluded from protection under the Immigration and Refugee Protection Act (IRPA) because they had previously been granted permanent resident status in Brazil and could return to that country under the terms of a family reunification process available to parents and siblings of a Brazilian citizen. The Appellants dispute the RPD's finding that they can have their residency status in Brazil reinstated as they ceased to be recognized as permanent residents two years after they left the country. [3] Having conducted my own independent assessment of the evidence and reviewed the transcript of the RPD's hearing, I find that the RPD correctly applied the criteria set out in Zeng1 to determine whether the Appellants are excluded pursuant to article 1E of the United Nations Convention Relating to the Status of Refugees ("the Convention"). It has accurately described the family reunification process established by Brazilian authorities of which the Appellants can avail themselves to regain their residency status and eventually become Brazilian citizens.

DECISION [4] The appeals are dismissed.

BACKGROUND The Appellants' Allegations [5] In XXXX 2015, the Principal Appellant attended a church meeting which was broken up by police and soldiers who claimed that the attendees were political opponents of the Angolan government and proceeded to arrest them.2 The Principal Appellant was able to escape and fled to another region of the country. The Associate Appellant was told by the police that they had an arrest warrant for the Principal Appellant. However, they never found him. [6] The Appellants went to live in Brazil in XXXX 2016, where they were recognized as permanent residents. They remained there for almost three years. In the interval, XXXX was born and was automatically granted Brazilian citizenship. The Appellants claimed that they had to leave Brazil after the Principal Appellant received death threats from criminals acting at the behest of his employer against whom he had filed a labour relations complaint. They filed their asylum claim upon entering Canada in June 2019. The Minister's Intervention [7] The Minister of Immigration, Refugees and Citizenship ("the Minister") disputed the Appellants' right to asylum on the grounds that they were excluded from protection because of their status in Brazil3 and their ability to avail themselves of a process to return to that country by reason of the fact that they have a child who is a Brazilian citizen. The RPD's

Decision [8] The RPD agreed with the Minister's submissions.4 It rejected the Appellants' contention that they were compelled to leave Brazil. It found that they left voluntarily and that the contention the Principal Appellant had received death threats was not credible. The RPD also found that while the Appellants experienced racial discrimination in Brazil, they had not been persecuted and there was not a serious possibility this would happen if they were to return there. [9] With respect to the child who is a Brazilian citizen, XXXX, the RPD found that he would not be at risk of being harmed if he were to return to his country of nationality. The Appeal Submissions [10] The Appellants point out that they no longer had permanent resident status in Brazil by the time of the RPD's hearing because more than two years since they left the country.5 Hence, they dispute the RPD's finding that they can return to Brazil. The Appellants indicate that there does not appear to exist an established process to apply for reinstatement of permanent residency after that status has expired. [11] The Appellants argue that the RPD erred in finding that they voluntarily left Brazil. They maintain that the Principal Appellant was credible in stating that their departure stemmed from death threats that he received, contrary to what the RPD concluded, and deny that there were significant

discrepancies between his testimony and his Basis of Claim form (BOC) as to how events unfolded, contrary to what the RPD determined. [12] The Appellants maintain that they were persecuted in Brazil and not merely racial discrimination against because of their race, citing difficulties they encountered in securing housing and education for their children. [13] As for their Brazilian-born child, XXXX, the Appellants have identified a risk of harm for him if he were to return to Brazil without his parents, which is that there is evidence of children in that country being used as forced labour.

ANALYSIS [14] I find that the RPD has correctly weighed and addressed each of the factors set out in the Zeng decision which must be considered in determining whether the Appellants are excluded from IRPA protection pursuant to article 1E of the Convention. I am therefore satisfied that the Appellants can all return to Brazil and none face a serious possibility of persecution based on race or other risk of harm stemming from the Principal Appellant's dispute with his former employer. [15] I accept that due to the Appellants' prolonged absence from Brazil, they may very well have lost their residency status, except for XXXX who retains his right to return to that country by virtue of his Brazilian nationality. However, the probable loss of permanent resident status is not the relevant issue. Rather, according to Zeng, even in cases where someone may have lost a residency status in a third country, the assessment of the issue of exclusion "must be fluid to ensure consideration is given to both the status and the actions of a claimant throughout." In order to deter asylum shopping, the Court elaborated a framework of analysis for article 1E Exclusion cases, permitting exclusion in some instances even after a person's status in the former country of residence has been lost. The three-pronged Zeng test remains the applicable analysis today: a. 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. b. 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. c. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to: i. the reason for the loss of status (voluntary or involuntary); ii. whether the claimant could return to the third country; iii. the risk the claimant would face in the home country; iv. Canada's international obligations; v. and any other relevant facts. [16] As of the date of the RPD's hearing, which is the point in time I am required to consider for the purpose of determining if the Appellants are still permanent residents of Brazil,6 more than two years had passed since they had last been present in that country, which the objective documentary suggests means that they would no longer be recognized by Brazilian authorities as permanent residents.7 As noted by the Appellants, the evidence is unclear as to whether there currently exists a formal process by which persons who have lost their status can apply to have it reinstated. However, what is clear is that Brazil has

put in place a process for family reunification, which would be available to the four non-Brazilian Appellants since one of the children of that family is a Brazilian citizen.8 The Appellants did not make any attempt to avail themselves of that process. This is a significant fact because it establishes that there is indeed a means by which the Appellant could regain residency status in Brazil and eventually citizenship in that country (within one year of their return). Hence, they have not satisfied their evidentiary burden of demonstrating that there is no possibility for them to regain a residency status in Brazil which would be substantially similar to that of Brazilian nationals. [17] Turning to the five factors that therefore need to be considered, I agree with the RPD's determination that four of those five factors weigh in favour of a finding that the Appellants are excluded from IRPA protection. The one factor that does not is the risk that the Appellants would face in their home country, Angola, as addressed by the RPD in its decision. [18] The Appellants argue that their loss of status was involuntary because they had to flee Brazil after receiving death threats. Even presuming that the Principal Appellant's testimony is credible regarding the threats that he received and the complaint that he filed with the police, that evidence is not sufficient to establish that

the Appellants' departure from Brazil was involuntary. The Appellants suggest that the police would not be able to protect them. I do no find that to be the case, based on the available evidence. There were also other options that the Appellants could have considered, such as moving to another part of the country, but which they never explored. Evidently, the Appellants were not satisfied with the police's response to their complaint but there is no indication that the threats continued afterwards. I therefore find that the Appellants' departure from Brazil was voluntary. [19] In terms of the risk the Appellants face if they return to Brazil, I agree with the RPD's determination that the Appellants have not established that the extent of racial discrimination which they experienced in that country amounted to persecution, nor does the objective country documentation establish a serious possibility of persecution based on their profile. For discrimination against a person to amount to persecution, it must be serious and occur with repetition and have consequences of a prejudicial nature for the person, such as when an individual is denied a core human right, such as the right to practice religion or to earn a livelihood9. In addition, the Federal Court specified that incidents of discrimination reported by refugee protection claimants must be sufficiently serious or occur with

repetition in order to amount to persecution10. That is not what comes across from the evidence presented by the Appellants as to what they experienced while living in Brazil for three years. [20] I find that the exclusion of the Appellants from IRPA protection would not violate Canada's international obligations, given that there is a strong possibility that the Appellants will not have to return to Angola but can instead avail themselves of a family reunification process that would enable them to live permanently in Brazil. [21] In that event, XXXX would not be returning to Brazil without his parents and therefore does not face the risk of persecution in his country of persecution as has been alleged.

CONCLUSION [22] The appeals are dismissed. (signed) Philippe Rabot Philippe Rabot September 19, 2023 Date 1 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. 2 RPD Record, Basis of Claim (BOC), at pp. 35 to 37. 3 Ibid., Minister's Notice of Intervention, at pp. 326 to 331. 4 Ibid., RPD Reasons and Decision, at pp. 5 to 16. 5 Appellants' Record, Appellants' Memorandum, at pp. 26 to 47. 6 Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.), at 152. 7 National Documentation Package -Brazil, Tab 3.8, Update to BRA106054 on whether a permanent resident automatically loses permanent resident status if outside the country for more than two years; recourse available to contest cancellation of permanent resident status (2017-March 2018), BRA201122.E, Immigration and Refugee Board of Canada, 22 July 2022. 8 National Documentation Package -Brazil, Tab 3.4,Brazil and Haiti: Update to ZZZ200658 on the temporary visas, including for family reunification; whether foreign national parents of a child with Brazilian citizenship can obtain a temporary visa for family reunification, ZZZ201121.E, Immigration and Refugee Board of Canada, 22 July 2022. 9 Sefa v Canada (Citizenship and Immigration), 2010 FC 1190. 10 Riboul v. Canada (Citizenship and Immigration), 2020 FC 263. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC3-04018 MC3-04019 / MC3-04020 / MC3-04021 MC3-04022 RAD.25.02 (August 20, 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 (August 20, 2021) Disponible en français