MC0-01798

RAD File / Dossier de la SAR : MC0-01798 MC0-01799 Private Proceeding / Huis clos Amendment - Amendement Amended Reasons and decision ? Motifs et décision Amendés Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision March 29, 2021 Date de la décision Panel Me Reisa Khalifa Tribunal Counsel for the persons who are the subject of the appeal Claude Whalen Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Michèle-Andrée Cromp Conseil du ministre AMENDED REASONS FOR DECISION OVERVIEW [1] XXXX XXXX and XXXX XXXX XXXX XXXX (Respondents) are citizens of Haiti. The Minister (Appellant) is appealing the positive decision rendered in XXXX XXXX XXXX XXXX claim by the Refugee Protection Division (RPD) on January 6, 2020. The positive decision rendered in XXXX XXXX claim has not been appealed. [2] The RPD found that the Respondents were Convention refugees under s 96 of the Immigration and Refugee Protection Act (IRPA). [3] The Appellant argues that the RPD erred in granting XXXX XXXX XXXX XXXX asylum, specifically in its finding that she was not excluded under s 98 of IRPA and 1E of the Convention. The Appellant argues that she held a status substantially similar to that of nationals in Brazil on the date of the RPD hearing, and that even if she had lost that status, she was able to reacquire it. The Appellant submits that the RPD decision regarding XXXX XXXX XXXX XXXX should be set aside and her claim for asylum rejected. [4] The Respondents reply that the RPD did not err in its findings, submitting that it correctly analyzed the objective documentary evidence regarding the loss of status in Brazil after an absence of two years, and the inability to regain it in the particular situation of XXXX XXXX XXXX XXXX. [5] I conclude that the RPD did not err in its finding that XXXX XXXX XXXX XXXX was not excluded under 1E of the Convention. After applying the factors of the Zeng v. Canada1 analysis to the testimonial and documentary evidence, with careful consideration of the Appellant's submissions and the Respondent's reply, I find that the RPD reached the correct finding. [6] I confirm the RPD decision regarding the Respondents. [7] In particular, I confirm the finding of the RPD that XXXX XXXX XXXX XXXX faces the serious possibility of persecution in Haiti based on the Convention ground of her imputed political opinion, that she is credible regarding her allegations of the threats and attacks against her in Haiti, that she has established subjective fear that is objectively well-founded and forward-facing, that she has rebutted the presumption of adequate state protection in Haiti and that there is no internal flight alternative (IFA) in Haiti that would be safe and reasonable for her. DECISION [8] The appeal is dismissed. The RPD decision is maintained. NEW EVIDENCE [9] No new evidence has been provided to the Refugee Appeal Division (RAD) and there has been no request for an oral hearing. ROLE OF THE RAD [10] When reviewing the RPD decision, I independently assessed the evidence, including listening to the audio recording of the RPD hearing of December 10, 2019, to determine whether or not the RPD was correct in relation to each alleged error of law, of fact, or of mixed law and fact. ANALYSIS-EXCLUSION FOR STATUS IN BRAZIL [11] The RPD found that the Respondent XXXX XXXX XXXX XXXX was not excluded for her permanent resident status in Brazil, as on the date of the hearing, she no longer had that status and the RPD found that she would not be able to regain that status. When considering the various factors of her situation in accordance with Zeng, the RPD concluded that she would not be excluded under sections 1E of the Convention or 98 of IRPA. [12] The Appellant argues that the RPD erred in its findings regarding the exclusion of the Respondent XXXX XXXX XXXX XXXX, specifically that she had not proven that she had lost her status on the day of the hearing, and that even if she had lost her status, had not proven that she could not regain that status. The Appellant therefore submit that she should be excluded. [13] The Respondents reply that the RPD was correct in its findings, as the Respondent XXXX XXXX XXXX XXXX provided testimonial and documentary evidence that she had lost her permanent resident status in Brazil and that she would not be able to regain that status. [14] As established by the Federal Court of Appeal in Zeng, the test to be applied is: 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. Status in Brazil on the date of the hearing [15] The RPD found that on the day of the hearing, December 10, 2019, the Respondent XXXX XXXX XXXX XXXX no longer had permanent resident status in Brazil, as she had left Brazil in January 2017 and the objective documentary evidence indicated that an absence of more than two years from Brazil would lead to a loss of permanent resident status.2 [16] The Appellant argues that the RPD erred because the Respondent XXXX XXXX XXXX XXXX failed to provide proof that she had lost her status on the day of the hearing. The Appellant argues that she had not demonstrated that her status had been lost or revoked after this status was established prima facie by the permanent resident card issued by Brazil that states it is valid until XXXX 20223. The Appellant submits that she should therefore be excluded. [17] The Respondents reply that Respondent XXXX XXXX XXXX XXXX provided proof that she had left Brazil in XXXX 2017 and that the objective documentary evidence demonstrates that permanent resident status is lost after an absence of two years from Brazil. The Respondents submit that the RPD was correct in its finding. [18] I find that the RPD was correct in its finding that, on the day of the hearing, the Respondent XXXX XXXX XXXX XXXX had lost her permanent resident status in Brazil. As indicated in her passport, she had left Brazil in XXXX 2017.4 During her testimony, she stated that she could no longer live in Brazil because it had been over two years since she had left, in XXXX 2017.5 Although in one of her forms, it was indicated that she had left Brazil in XXXX 2017,6 when questioned at the hearing she testified that this had been an error,7 which was found to be a reasonable explanation by the RPD after verifying that there was no stamp after XXXX 2017 from Brazil in her passport. I find the explanation to be satisfactory and consider that the date she left Brazil is established, on the balance of probabilities, to be in XXXX 2017. [19] The objective documentary evidence regarding the loss of a permanent visa issued under Law 6,815 of August 19, 1980, the law under which the Respondent XXXX XXXX XXXX XXXX permanent residence card was issued, indicates that those with permanent resident status lose their status following an absence of two years from Brazil.8 This information was reiterated under the new law that was adopted in Brazil in May 2017, under which a permanent resident who is absent from Brazil for more than two years will lose their status.9 It is possible to regain this status under certain conditions,10 which will be examined further in the next section regarding the loss of status. [20] I find that, on the date of the hearing, December 10, 2019, the Respondent XXXX XXXX XXXX XXXX no longer had status in Brazil, as she had been absent from the country for over two years, since XXXX 2017, meaning that her status had expired in XXXX 2019. Loss of previous status [21] Under the Zeng analysis, the next question is, did the Respondent previously have status substantially similar to that of nationals and then lose it? [22] The RPD found that the Respondent previously had status substantially similar to that of nationals, after analyzing the rights and obligations of those with permanent resident status and comparing them to those with Brazilian nationality. As discussed above, the RPD found that the Respondent had then lost this status due to an absence of two years from Brazil. The RPD found that she was not asylum shopping, as she had left Brazil due to her job ending, before returning to Haiti to work, after which she was threatened and attacked. Her reason for claiming asylum, the RPD found, arose after she had left Brazil, and when she had left Haiti in XXXX 2019, she had already lost her status in Brazil. The RPD found that, when considering this along with her credible allegations of persecution in Haiti, she should not be excluded. [23] The Appellant, as discussed above, argues that the permanent resident status was not proven to be lost by the Respondent, but that even if she had lost it, there were avenues to reclaim it of which she did not avail herself. The Appellant submits that the RPD erred in not weighing the various Zeng factors once determining that she had lost her status, which they allege led to the incorrect finding that she was not excluded. [24] The Respondents do not contest that the status of the Respondent was substantially similar to that of nationals, but submit that with a Zeng analysis, the correct finding is that the Respondent XXXX XXXX XXXX XXXX is not excluded, as the evidence shows that she was not asylum shopping, in agreement with the reasoning and findings of the RPD. [25] After reviewing the evidence, I am in agreement that the Respondent had status that was substantially similar to that of nationals of Brazil, but find that the documentary evidence demonstrates that the permanent resident status of the Respondent XXXX XXXX XXXX XXXX was lost, therefore the following factors must be considered: reason for loss of status (voluntary or involuntary); whether she could return to Brazil; the risk that she would face in Haiti; Canada's international obligations; and any other relevant factors. Reason for loss of status (voluntary or involuntary) [26] The RPD found that the Respondent had left Brazil because her job had ended, without categorizing it as voluntary or involuntary. [27] The Appellant argues that the Respondent had left voluntarily, as she chose to leave when her job had ended, despite her permanent resident status there. [28] The Respondents submit that the Respondent had already lost her status in Brazil when her problems arose in Haiti, so she had not been asylum shopping when she left Brazil. [29] Furthermore, the Appellant refers to the case of Noel,11 in which voluntary loss of permanent resident status contributed to the finding of exclusion. However, that case can be distinguished from the present one in that the claimant in that case had not lost his permanent resident status in Brazil at the time of the RPD hearing, and he had left Brazil after he had left Haiti, allegedly in fear for his life in Haiti. In the present appeal, the Respondent had left Brazil before she alleged having suffered persecution in Haiti, so was not in fear for her life when she chose to leave Brazil. I therefore find that the concerns regarding asylum shopping that may have been present in Noel are different from the present appeal, in which the Respondent left Brazil before she was in fear for her life in Haiti, therefore it cannot be said to have been asylum shopping, as she was not in a situation of having to claim asylum when she left Brazil. Furthermore, unlike the case of Noel in the present appeal, the Respondent's hearing at the RPD occurred after the two-year time period when she had left Brazil, so she was not in the same position as the claimant in that case. [30] I find that the departure of the Respondent from Brazil was voluntary, in the context that her job had ended in Brazil, and that she had at the time she left Brazil, no reason to fear for her life in Haiti. I consider, when weighing the factors for and against exclusion, that this weighs against exclusion, as it indicates that she was not asylum shopping by leaving a surrogate safe country to seek asylum elsewhere during a situation of persecution. At the time she left Brazil, she was not being persecuted in her home country. Whether Respondent could return to Brazil [31] The RPD found that the Respondent could not return to Brazil, because she had been absent from the country for more than two years, and did not meet one of the requirements to have her status reinstated, according to the national documentary evidence. [32] The Appellant argues that the Respondent failed to prove that she could not meet one of the requirements to reinstate her status. [33] The Respondent submits that the RPD was correct in its findings and that she did not fall into any of the categories of people who would have grounds to reinstate their status in Brazil after an absence of more than two years. [34] I find that the RPD was correct in its finding that the Respondent did not fall into any of the categories that would have allowed her to reinstate her status in Brazil. According to the objective documentary evidence, a new permanent resident visa may be granted to a foreigner who once lived in Brazil as a permanent resident, and then left to pursue university studies, professional training, a professional activity for the Brazilian government or a research activity for the Brazilian government.12 These conditions are reiterated in multiple sources in the objective documentary evidence.13 I consider that this finding also weighs against the exclusion of the Respondent. Risk Respondent would face in Haiti [35] The RPD found that the Respondent had established that she faces the serious possibility of persecution should she return to Haiti, based on the Convention ground of imputed political opinion, due to her revealing that one of her co-workers at a Haitian senator's office had accepted a bribe, following which she was threatened with death and survived two attempts on her life, in XXXX 2018 and XXXX 2019. [36] The Appellant did not contest this finding. [37] The Respondents made no submissions on this finding. [38] After reviewing the testimonial and documentary evidence, including the exhibits produced by the Respondent, particularly: exhibit C-4: proof of Respondent's employment in the Haitian senate; exhibit C-5: paystubs from job in Haiti; exhibit C-6: statement by Respondent's father to a Haitian justice of the peace regarding a break-in at her house in XXXX 2018 that is believed to be orchestrated by the agent of harm; exhibit C-7: a statement to Haitian authorities regarding the attack of XXXX 2019; exhibits C-8 and C-9: two witness statements from XXXX 2019 regarding death threats against the Respondent in Haiti; and exhibit C-10: Amendment to BOC and new facts regarding recent incidents in Haiti connected to agent of harm, I find that the RPD was correct in finding that she faces a prospective risk in Haiti. I consider that this finding weighs against the exclusion of the Respondent. Canada's international obligations [39] I consider that Canada's international obligations, particularly with respect to the Convention, would be met by not excluding the Respondent, as I find that the factors in her situation weigh against excluding the Respondent. Conclusion regarding exclusion [40] The evidence demonstrates, on the balance of probabilities, that the Respondent was not asylum shopping, as she left Brazil before the reason for her asylum claim had come into being, namely the threats to her life that she had suffered in Haiti after her departure from Brazil; I find that her prospective risk in Haiti is established and that she faces the serious possibility of persecution there; I find that she cannot return to Brazil according to the information available in the objective documentary evidence; I find that these factors outweigh the fact that the Respondent left Brazil voluntarily. [41] I find that the RPD was correct in its finding that the Respondent is not excluded and conclude that she should not be excluded under sections 1E of the Convention and 98 of IRPA, when weighing all the relevant factors. ANALYSIS-PERSECUTION IN HAITI Nexus to the Convention [42] As the allegations of the Respondents gives rise to Convention grounds, specifically on the basis of imputed political opinion for the Respondent XXXX XXXX XXXX XXXX, I shall examine the allegations in light of s 96 of IRPA. Credibility [43] As discussed above with respect to the allegations of prospective harm in Haiti, the RPD found that the Respondent was credible. [44] The Appellant did not make any submissions impugning the credibility of these allegations. [45] The Respondents did not make any submissions regarding these findings. [46] After reviewing the testimony in the recording of the RPD hearing, as well as the documentary evidence in the file, I have no reason to doubt the credibility of the allegations regarding the prospective risk in Haiti. I find that she has established, on the balance of probabilities, that in XXXX 2018, she was threatened with death by an individual who worked with her in the senator's office after she denounced the individual for accepting a bribe, and that she survived two assassination attempts, one in XXXX 2018 and one in XXXX 2019. I further find credible that there have been recent attempts to look for her in Haiti after her departure. [47] I find that the Respondents have provided credible evidence that the Respondent XXXX XXXX XXXX XXXX faces the serious possibility of persecution if she were to return to Haiti, based on her imputed political opinion. She has established that she is subjectively fearful and that her fear is objectively well-founded and forward-facing. State protection [48] The RPD found that the Respondents rebutted the presumption of adequate state protection for the Respondent XXXX XXXX XXXX XXXX in Haiti, with clear and convincing evidence that if she were to approach the authorities for protection there, they would be unwilling or unable to provide it. [49] The Appellant and Respondents did not make submissions regarding this finding. [50] After reviewing the personal and objective documentary evidence, I am in agreement with the RPD's finding regarding a lack of adequate state protection for the Respondent XXXX XXXX XXXX XXXX in Haiti. In particular, the Respondent had provided written and oral testimony that she had gone to her employer, the senator, a highly placed individual, for help, and he had told her to go into hiding after the threats on her life. This underscores the country conditions regarding the inability of authorities to protect the Respondent, in addition to the information in the objective documentary evidence14. IFA [51] After proposing Léogâne as a possible IFA in Haiti and considering the means and motivation of the agent of harm, in conjunction with the objective documentary evidence, the RPD found that there was no viable IFA for the Respondents there. [52] The Appellant and Respondents did not make any submissions regarding this finding. [53] After reviewing the evidence, I am in agreement with the RPD's finding. I find that, on the balance of probabilities, given the credible evidence by the Respondents regarding the ability and interest of the agents of harm to track down the Respondent XXXX XXXX XXXX XXXX in Haiti, including the two assassination attempts, the recent attempts of the agent of harm to find her in Haiti, and the occupation of the agent of harm as having the resources and connections available to him of someone who works for the Haitian government, that the agent of harm would have the means and motivation to find the Respondent throughout Haiti and that, as a result, the Respondent would face the serious possibility of persecution throughout Haiti, that there is nowhere in Haiti that would be safe for her to relocate. [54] As the first prong of the IFA test of safety has not been met, there is no need to assess the second prong of reasonableness. CONCLUSION [55] I dismiss the appeal. I confirm the decision of the RPD that XXXX XXXX XXXX XXXXXXXX is not excluded under sections 1E of the Convention and 98 of IRPA, and that both XXXX XXXX XXXX XXXXXXXXand XXXX XXXXXXXX are Convention refugees. (signed) Reisa Khalifa Me Reisa Khalifa March 29, 2021 Date of amended decision March 12, 2021 Date of original decision RK/in 1 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. 2 RPD-1, RPD Record, Document 3- National Documentation Package for Brazil : October 31, 2019-Tab 3.7. 3 RPD-1, RPD Record, Document 1- CBSA Information Kit : Foreign Identity Card from Brazil. 4 RPD-1, RPD Record, Document 1- CBSA Information Kit : Passport, p. 8. 5 Recording of the RPD hearing of December 10, 2019, at 15:20. 6 RPD-1, RPD Record, Document 1- CBSA Information Kit : IMM 5669. 7 Recording of the RPD hearing of December 10, 2019, at 21:35. 8 RPD-1, RPD Record, Document 3- National Documentation Package for Brazil : October 31, 2019-Tab 3.7. 9 RPD-1, RPD Record, Document 3- National Documentation Package for Haiti : September 30, 2019-Tab 3.17. 10 RPD-1, RPD Record, Document 3- National Documentation Package for Haiti : September 30, 2019-Tab 3.17; Tab 14.11; Tab 14.15; National Documentation Package for Brazil : October 31, 2019-Tab 3.7. 11 Noel v. Canada (Citizenship and Immigration), 2018 CF 1062. 12 RPD-1, RPD Record, Document 3- National Documentation Package for Haiti : September 30, 2019-Tab 3.15. 13 RPD-1, RPD Record, Document 3- National Documentation Package for Haiti :September 30, 2019-Tab 14.11; Tab 14.15; National Documentation Package for Brazil : October 31, 2019-Tab 3.7. 14 RAD-1, National Documentation Package for Haiti : September 1, 2020-- Tabs 2.5; 7.1; 7.2; 7.4; 7.6; 9.2; 9.3; 10.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-01798 MC0-01799 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français