MB9-21268

RAD File No. / No de dossier de la SAR : MB9-21268 MB9-21269 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered at Ottawa, ON Appel instruit à Date of decision December 23, 2020 Date de la décision Panel Me Philippe Rabot Tribunal Counsel for the persons who are the subject of the appeal François Jean Denis Conseil des personnes en cause Designated representative

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

REASONS FOR DECISION

OVERVIEW [1] The principal appellant, XXXX XXXX, is a citizen of Haiti, whereas her minor daughter, XXXX XXXX XXXX, is a citizen of Brazil. The principal appellant states that she fears her ex-spouse in Haiti, who was allegedly violent with her and threatened to kill her if he saw her again. She also states that she would be persecuted in Brazil, where she was a permanent resident, because of her Haitian nationality, and that this would also be the case for her daughter. The Refugee Protection Division (RPD) did not find the fear regarding Brazil to be credible, and it therefore concluded that the principal appellant was excluded from protection under the Immigration and Refugee Protection Act (the Act) because of her status in Brazil. The appellants are challenging this conclusion and argue that the RPD erred in failing to make a determination regarding the risk that the principal appellant could face if removed to Haiti.

DETERMINATION [2] There is no error in the RPD's analysis of the criteria established in Zeng1 for determining whether the principal appellant is excluded from protection under the Act. The risk of persecution faced by either appellant in Brazil does not rise to the level of a serious possibility. Because the principal appellant can return to Brazil, it is not necessary to consider the risk that she would be subjected to in Haiti. The appeals are therefore dismissed.

BACKGROUND [3] The principal appellant submits that she was the victim of domestic violence in XXXX 2011.2 To protect herself, she decided to leave Haiti. She was established in Brazil until XXXX 2016. That is where the associate appellant was born. The appellants then lived in the United States for one year before coming to Canada. [4] The Minister of Public Safety and Emergency Preparedness intervened in writing before the RPD,3 arguing that the principal appellant was excluded from protection under the Act because she had permanent resident status in Brazil and alleged no fear with regard to that country. [5] However, subsequently, when the principal appellant testified before the RPD, she argued that both she and the associate appellant would likely be subjected to persecution if they had to return to Brazil because of their Haitian ethnicity. The principal appellant recounted many incidents of racism that she experienced while living in Brazil, maintaining that that was why she left that country. [6] The RPD did not find the principal appellant's testimony about her fear of returning to Brazil to be credible.4 Because, at the time, it had been over two years since the principal appellant had left Brazil, the RPD concluded that she had probably lost her permanent resident status, but considered the loss voluntary. According to the RPD, the principal appellant could return

to Brazil because her daughter is a citizen of that country, meaning that the principal appellant would be eligible for a visa as part of a family reunification program implemented by the Brazilian authorities. Consequently, the RPD agreed with the Minister that the principal appellant was excluded from protection under the Act. [7] With regard to the associate appellant, the RPD concluded that the evidence did not establish that there was a serious possibility that she would be persecuted because of her Haitian ethnicity if she returned to her country of citizenship, Brazil. [8] The appellants argue that the RPD incorrectly applied the Zeng criteria. The principal appellant argues that she is not excluded from protection under the Act because she does not have the possibility of returning to Brazil, that her departure was involuntary, and that her removal to Brazil would contravene Canada's international obligations because of the discrimination against persons of Haitian origin in Brazil and because her life is still at risk at the hands of her ex-spouse in her country of nationality, Haiti.5 She also argues that permanent resident status in Brazil did not give her the rights and obligations attached to the possession of nationality within the intended meaning of Article 1E of the United Nations Convention Relating to the Rights of Refugees (the Convention).

ANALYSIS [9] The RPD was correct to conclude that permanent resident status in Brazil gives the holder the rights and obligations attached to the possession of nationality within the intended meaning of Article 1E of the Convention. Furthermore, even assuming that the principal appellant has lost that status, I agree with the RPD that the principal appellant must still be considered as excluded from protection under the Act. The RPD did not err in applying the factors to be considered according to Zeng. The risk of persecution that the two appellants would be subjected to by reason of their race or nationality if they returned to Brazil is below the level of a serious possibility. It also was not established that they would likely be subjected personally to a risk to their lives or that they would be subjected to cruel and unusual treatment or punishment. The rights and obligations conferred by permanent residence in Brazil [10] The principal appellant relies on her personal experience to argue that some social services are not accessible to permanent residents of Brazil. This is false. The Brazilian Constitution6 is absolutely clear that, with the exception of the right to vote, Brazilian permanent residents enjoy the same rights and obligations as Brazilian citizens, particularly with regard to health, education and access to the labour market. If that does not correspond to

what the principal appellant allegedly experienced several times, the fact remains that she could have asserted those rights. [11] The principal appellant also argues that her status did not allow her to return to Brazil once she left the country, unlike Brazilian citizens. This is a misinterpretation on her part of a Response to Information Request by the Immigration and Refugee Board of Canada's Research Directorate.7 The voluntary nature of the loss of status in Brazil [12] The principal appellant claims that her departure from Brazil was involuntary because she felt that she was forced to leave to avoid discrimination. Yet, as the RPD pointed out, in her refugee protection claim, the principal appellant mentions no fear with respect to Brazil and does not state that she felt persecuted during the five years she lived there. While I acknowledge that the principal appellant could have felt mistreated in Brazil because she is Haitian, I do not believe that she was forced to leave the country. She freely chose to do so, like numerous other Haitian nationals did in 2016 when economic conditions in Brazil began to deteriorate, and then went to the United States in the hope of finding work there. The possibility of returning to Brazil [13] The principal appellant does not challenge the RPD's interpretation of the Brazilian provisions concerning the family reunification program. I

find that it is true that the principal appellant could in fact qualify for a visa that would allow her to return to live in Brazil, in light of her daughter's Brazilian nationality.8 Canada's international obligations [14] The principal appellant argues that her removal to Brazil would not fulfil Canada's commitments against discrimination and torture, as it [translation] "is obvious that the appellant will be a victim if she returns to the country." This is not self-evident to me, at least with regard to the danger of being tortured. With respect to the possibility of her being discriminated against, Canada has never made a commitment to the international community to refuse to return refugee protection claimants for that specific reason. The absence of an assessment of the risk in the country of origin [15] The RPD's failure to assess the risk in the country of origin, in this case, Haiti, is not an error in law, because the RPD concluded that the principal appellant can return to Brazil. This approach was approved by the Federal Court.9 The assessment of the risk to which the appellants would be subjected if they were removed to Brazil [16] Before being able to conclude that the principal appellant is excluded from protection under the Act, I must examine the issue of whether she faces a serious possibility of persecution on one of the five grounds set out in section 96 of

the Act (race, religion, nationality, membership in a particular social group, political opinion). It is also relevant to consider this issue in the case of the associate appellant. Neither of the appellants alleges a risk on the basis of section 97 of the Act, namely, the probability that they would be subjected personally to a risk to their lives or that they would be subjected to torture or cruel and unusual treatment or punishment. I will therefore make no determination on this. [17] I do not consider that the RPD erred in assessing the risk of persecution. I will not deny that there is a serious possibility that the appellants would be discriminated against at some point. However, in order for the discrimination to be considered persecution, it must be sustained or affect fundamental rights.10 The principal appellant's experiences in Brazil are not sufficient to establish that there is a serious possibility that the level of discrimination that they would likely face in the future would be sufficiently severe to be considered persecution.

CONCLUSION [18] The principal appellant is excluded from protection under the Act because she was once a permanent resident of Brazil. The associate appellant does not face a serious possibility of persecution in Brazil by reason of her race or nationality. [19] The appeals are therefore dismissed. (signed) Philippe Rabot Philippe Rabot December 23, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. 2 SPR-1, Refugee Protection Division (RPD) record, appellant's Basis of Claim Form, at pages 14 to 23. 3 Ibid., Minister's intervention, at pages 135 to 138. 4 Ibid., RPD's Reasons and Decision, at pages 4 to 12. 5 P-2, appeal record, appellant's memorandum, at pages 13 to 22. 6 SPR-1, National Documentation Package (NDP) - Brazil (April 30, 2018), Tab 3.4, The rights and duties of permanent residents, including the rights and duties of individuals who have a permanent visa, such as professors, researchers, highly-skilled technicians and foreign scientists; procedure to obtain or renew a residency permit; grounds for losing permanent residence (2014-May 2016), BRA105515.FE Immigration and Refugee Board of Canada (IRB), May 25, 2016. 7 Ibid., Response to Information Request, BRA 105515.FE, May 25, 2016. 8 SPR-1, NDP - Haiti (July 20, 2018), Tab 14.14, Brazil and Haiti: Whether it is possible for Haitian nationals whose

children have Brazilian citizenship to obtain permanent resident status; requirements and application procedure (2017-April 2019), Research Directorate, IRB, ZZZ106283.FE, April 15, 2019. 9 Osazuwa v. Canada (Citizenship and Immigration), 2016 FC 155. 10 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-21268 MB9-21269 RAD.25.02 (January 2020) Disponible en français 5 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January 2020) Disponible en français