MB9-10228

RAD File No. / No de dossier de la SAR : MB9-10228 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision September 1, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Me Brigitte Objois 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] This is the appeal filed by XXXX XXXX, a citizen of Haiti, regarding a decision of the Refugee Protection Division (RPD) rendered on May 1, 2019, rejecting his claim for refugee protection. [2] The appellant's written account is concise overall. He states that he took part in a number of peaceful demonstrations during Jean-Bertrand Aristide's presidency. His written account goes on to state that Mr. Aristide's supporters started to persecute him by following him in the street and threatening him. He lived in hiding for approximately two years. He alleges that on XXXX XXXX XXXX 2013, two individuals attacked him and he was shot in the XXXX XXXX. He left his country for Brazil on XXXX XXXX, 2013, and stayed there until XXXX XXXX XXXX 2016, thereby obtaining permanent residence. He stated that he was threatened by Brazilians on XXXX XXXX, 2016, because of his Haitian origin. In light of this situation, the appellant decided to go to the United States, and he stayed there until late XXXX 2017, at which time he arrived at the Canadian border to claim refugee protection. [3] The RPD rejected the refugee protection claim, determining that he is neither a "Convention refugee" nor a "person in need of protection" because he is a person described in Article 1E of the Convention by reason of his permanent residence in Brazil. [4] The appellant is asking the Refugee Appeal Division (RAD) [translation] "to set aside the negative determination and refer the matter for a hearing to be held before a differently constituted RPD panel on a date to be determined." [5] On appeal, the appellant submitted the following arguments: 1-Did the member err in fact and in law by determining that the claimant is a person described in Article 1E of the Convention and concluding that he had permanent resident status in Brazil? 2-Did the member err in not analyzing the possibility of persecution on a Convention ground if the appellant returned to Haiti? 3-Were there sufficient reasons for the RPD's decision to be in compliance with the principles of natural justice? [6] The appellant is not asking to present new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and is not requesting that an oral hearing be held under subsection 110(6) of the IRPA. [7] The Minister's representative did not intervene on appeal. DETERMINATION [8] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA because he is a person described in Article 1E of the Convention. [9] The appeal is dismissed. ANALYSIS [10] Having reviewed all of the evidence on the record, both testimonial and documentary, the RAD makes the same finding as the RPD, that the appellant is not credible regarding the alleged persecution in Brazil. [11] The appellant is of the opinion that the RPD failed to properly assess his credibility and his testimony as a whole, which swayed the decision toward the determination that the appellant would not be persecuted in both Brazil and Haiti. [12] There are four criteria to determine whether the appellant is excluded from the application of the Convention by reason of his status in Brazil. These criteria determine whether the appellant has rights that are similar to the rights of Brazilian citizens. These criteria are the right to return to Brazil, the right to work freely without restrictions, the right to study and access to social services and health care.2 The status must be indefinite. [13] In Zeng,3 the Federal Court of Appeal describes the criteria applicable with respect to Article 1E of the Convention. [14] The appellant argues that his status in Brazil has expired due to the two-year absence from the country. He acknowledged being on the list of Haitians who obtained permanent residence in Brazil. This is compelling evidence that the appellant had obtained permanent status in Brazil. He also testified that he had worked for a time in this adopted country. However, he does not have his documents to establish this since he allegedly lost his bag in a river on his journey from Brazil to the United States. The RAD is of the opinion that there is prima facie evidence that the appellant has permanent resident status in Brazil. It is his responsibility to establish that he does not have status in Brazil. [15] He testified that, at the time of the hearing, he no longer had status. He stated that he had called the consulate for information. He was allegedly told that once two years had passed, he would automatically lose his status. It should be noted that when the telephone call was made, the two-year time limit had not yet passed. He left Brazil on XXXX XXXX XXXX 2016, and he made the call in XXXX 2017, which means that the two-year period had not passed. Whereas, at the time the call was made to the Brazilian authorities, the appellant had not yet lost his status or had any proof of losing it, he had not taken any administrative measures to retain the status and, above all, he did not take steps to renew his permanent resident status. The only action the appellant has taken since his arrival is to make a telephone call to the Brazilian authorities. Given the little effort made to retain the valuable status, the panel can only conclude that the appellant had voluntarily lost his status. The RAD is of the opinion that the onus was on the appellant to establish that he no longer had permanent resident status in Brazil and that this status had been lost or could not be renewed, which he failed to do. [16] As a result, the RAD is of the opinion that the RPD did not err. [17] With respect to the second factor raised in the memorandum, namely, the absence of the analysis of the risk in Haiti if the appellant had to return to his country of nationality. In the circumstances, the RAD is of the opinion that the risk that must be analyzed is that of his country of permanent residence. [18] The appellant mentions in his written account in the information form that Brazil was hit by an economic and political crisis. He notes that it was difficult to work and that he faced severe discrimination. He adds that he was assaulted on XXXX XXXX, 2016, upon leaving church. He testified that there is no one to defend him. He blames the assault against him on racism. He alleges that racism is on the rise in Brazil. He states that he is treated like a former Black slave. [19] When asked whether he had gone to the police to report the assault of XXXX XXXX, 2016, he responded no and added that he did not speak Portuguese very well. He states that Brazil is not a country of immigration and that Haitians are the first foreign nationals to arrive in the country. [20] Following the earthquake that heavily impacted Haiti, several countries, including Brazil, welcomed residents from this country that has been ravaged by a host of problems. More than forty-three thousand individuals were admitted and obtained permanent residence. Brazil is a country where violence is widespread. As in many countries, when an economic slowdown strikes, it is often the most vulnerable and foreigners who are blamed for causing these difficulties. The appellant described an act that ethnic Brazilians had committed against him. Furthermore, difficulty finding work and employment discrimination cannot be associated with persecution. [21] It is understood from his statements that he associates the situation of discrimination toward Haitians in Brazil with persecution. According to the case law, persecution is a "sustained or systematic violation of basic human rights demonstrative of a failure of state protection."4 The evidence before the panel shows that Brazil is a country where the rate of violence is very high and where there are regular incidents of discrimination or racism.5 This document reports that Afro-Brazilians encountered discrimination by the scale of arrests targeting this community, as well as homicides. The RAD considers that to be generalized violence that affects Brazil. The appellant did not demonstrate that the assault against him was linked to his Haitian origin. [22] The appellant failed to demonstrate that his fundamental rights were violated or that they would be if he returned to Brazil. He noted that he had left his job due to a lack of work. Racism is not sufficient to find that the appellant would face persecution in that country. [23] The final factor in the memorandum pertains to the following question: Were there sufficient reasons for the decision to be in compliance with the principles of natural justice? This statement was made without providing justification or compelling examples. The memorandum notes that the decision had several errors of fact and of law. In this decision, the panel addresses the matter central to the refugee protection claim, namely, the exclusion under Article 1E of the Convention, section 98 of the IRPA. [24] The RAD does not share the appellant's opinion regarding a breach of natural justice in this case. To start, the panel is of the opinion that the hearing was conducted by the book, the climate was peaceful, the appellant was communicating well with the interpreter, and he also understood French, which did not pose a problem. The seasoned counsel assigned to the case was able to openly question her client at a time that suited him. At the end of the hearing, she also shared with the panel her thoughts on the case. At no point during the hearing did she raise any difficulties with respect to how the process unfolded. Furthermore, the panel does not note any breach of natural justice in the RPD's questioning and analysis of this case. The RPD considered the written account submitted, questioned the appellant, as did his counsel, and also applied paragraph 28 of the Federal Court of Appeal's decision in Zeng. [25] The RAD would like to refer to the decision in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board),6 where the Supreme Court of Canada states the following at paragraph 15: "In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show 'respect for the decision-making process of adjudicative bodies with regard to both the facts and the law' (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome." [26] The panel is of the opinion that the RPD provided reasons and explanations that communicated its view on the analysis of Article 1E of the Convention and the appellant's fear in Brazil. Consequently, there is no breach of natural justice. [27] Lastly, the RAD would like to add that the appellant left Brazil on XXXX XXXX XXXX 2016, for the United States. He stayed there until late XXXX 2017. When asked whether he had applied for asylum with our neighbours to the south, he responded that he had not since he did not have the money to pay lawyers' fees. He requested assistance from a Catholic organization, and he allegedly received help to obtain a work permit. When asked to explain whether he had applied for asylum, he responded that he had not due to the associated costs. This behaviour denotes a lack of subjective fear on his part. If he is as fearful as he claims in both Haiti and Brazil, he should have applied for asylum in the United States. In addition, since he has family in that country, the appellant could have relied on these people, which he did not do. Consequently, this undermines his credibility and his subjective fear. [28] For the reasons expressed in this decision, the RAD is of the opinion that the RPD made the correct and appropriate decision. REMEDY [29] In light of all the information above, and after thoroughly reviewing the evidence, the RAD for these reasons confirms the RPD's determination that XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA, because he is a person described in Article 1E of the Convention by reason of his permanent resident status in Brazil. [30] The appeal is dismissed. (signed) Michel Jobin Michel Jobin September 1, 2020 Date 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 Shamlou v. Canada (Minister of Citizenship and Immigration),1995, F.C.J. No. 1537; and Kanesharan v. Canada (Minister of Citizenship and Immigration), 1996, F.C.J. No. 1278. 3 Canada (Minister of Citizenship and Immigration) v. Zeng, 2010 FCA, paragraph 28. 4 Ranjba v. Canada (Minister of Citizenship and Immigration) 2003 FCT 637 (CanLII), 2003 FC 637; Sagharichi v. Canada (Minister of Employment and Immigration) 1993, 182 N.R. 398 (C.A.). 5 SAR-1, National Documentation Package on Brazil, October 31, 2019, Tab 2.1: Brazil. Country Reports on Human Rights Practices for 2018. United States. Department of State, March 13, 2019. 6 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 3 SCR 708. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-10228 RAD.25.02 (January 2020) Disponible en français 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