MB7-11108

RPD File No. / No de dossier de la SPR : MB7-11108 MB7-11205 Client ID No. / No ID client : 1108330664 1108330672 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Claimant(s) XXXX XXXX XXXXXXXX XXXX Demandeur(e)(s) d'asile Date(s) of hearing April 26, 2018 Date(s) de l'audience Place of hearing Montréal, Quebec Lieu de l'audience Date of decision and reasons May 25, 2018 Date de la décision et des motifs Panel Anne Bardin Tribunal Counsel for the claimant(s) François Jean Denis Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Véronique Aubry [Filing of documents] Conseil du (de la) ministre REASONS FOR DECISION INTRODUCTION [1] The claimants, XXXX XXXX and his spouse, XXXX XXXX, are citizens of Haiti and are alleging that they are "Convention refugees" and "persons in need of protection" as defined in section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act). ALLEGATIONS [2] The male claimant states1 that he arrived in Brazil on XXXX XXXX XXXX 2011. The female claimant arrived there on XXXX XXXX, 2011. The claimants allege that, as Haitians, they faced discrimination there. [3] The male claimant states that, before meeting his spouse in Brazil, he lived in an apartment with four men for over a year. He alleges that he was a mechanic and that he often spent a week away from his home and, as a result, was always in the company of men. The male claimant states that he felt good in that situation and that that confirmed his bisexual sexual orientation. [4] The principal male claimant states that he was ridiculed by people in his entourage who noticed that he is bisexual. He alleges that his spouse was ridiculed and that he was told that he deserved to die for making her suffer. [5] When faced with the double discrimination that they were experiencing, the claimants decided to leave Brazil on XXXX XXXX, 2015, for the United States, where they arrived on XXXX XXXX, 2016. [6] With the arrival of President Trump and his migration policies, the claimants travelled to Canada to claim refugee protection here on August 11, 2017. [7] The claimants fear returning to Haiti and being mistreated, or even killed, by the population because of the male claimant's sexual orientation. MINISTER'S INTERVENTION [8] In his notice of intervention dated November 27, 2017,2 the Minister states that the claimants have been permanent residents of Brazil since 2012, as their names can be found on lists of people who were given the opportunity to regularize their status by the Brazilian government and to thus receive permanent residence in Brazil.3 [9] The Minister states that permanent resident status in Brazil grants the male claimant rights and obligations that are substantially similar to those of Brazilian citizens.4 [10] The Minister states that, when they filed their refugee protection claim in Canada on August 11, 2017, their permanent resident status in Brazil was still valid as two years had not yet passed since they left that country on XXXX XXXX, 2015.5 [11] The Minister also states that the claimants did not provide reasonable justification for abandoning their permanent resident status and allowing it to expire. Moreover, the Minister states that the claimants' actions, or rather, their lack of efforts, show that they do not have a subjective fear of being persecuted in their country of origin, Haiti. [12] Consequently, the Minister asks the Refugee Protection Division to exclude the claimants from the application of the Convention Relating to the Status of Refugees under section 98 of the Act. DETERMINATION [13] The panel determines that the claimants are described in Article 1E of the Convention and that, consequently, they cannot be "Convention refugees" or "persons in need of protection" under section 98 of the Act. ANALYSIS Identity [14] The claimants established their identities by means of their Haitian passports issued in Brazil, photocopies of which are on the record.6 Permanent residence in Brazil [15] Article 1E of the Convention reads as follows: This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. [16] In Zeng,7 the Federal Court of Appeal sets out the following criteria for determining whether Article 1E of the Convention should apply to a specific case: 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. [17] The female claimant acknowledged that she obtained permanent residence in Brazil about one year after she arrived in that country on XXXX XXXX, 2011. That is consistent with Exhibit M-3,8 submitted by the Minister, which demonstrates that the female claimant had access to permanent residence in XXXX 2012 according to the publication in the official gazette of Brazil. When asked about the rights that she had in Brazil, the female claimant first responded that she did not have any rights in that country. In response to the panel's questions, she acknowledged that she could work. She stated that she had to pay to obtain medical care and to study. The female claimant stated that, nevertheless, she studied nursing sciences for two years. She did not allege that she was refused care, but that she did not have any health insurance. [18] With regard to the male claimant, he acknowledged that he obtained permanent residence in Brazil in XXXX or XXXX 2012. That is consistent with Exhibit M-2,9 submitted by the Minister, which demonstrates that the male claimant had access to permanent residence in XXXX 2012 according to the publication in the official gazette of Brazil. When questioned as to the rights granted to him because of his permanent resident status, he stated that, like the female claimant, he did not have access to medical care like Brazilians because, unlike Brazilians, he had to pay to receive care. He also indicated that he did not have medical insurance through his employment. The male claimant was able to work in Brazil. [19] According to the documentary evidence,10 with permanent residence, a foreign national has the right to return to Brazil as a permanent resident, as well as has the right to work, study and have access to social services there. Under the Brazilian Constitution, these social rights include education, health, employment, leisure, security, social security, maternal and child protection, and assistance to the destitute. The panel is aware that some foreigners have been mistreated by employers who have tried to withhold medical insurance or underpay employees who are not necessarily aware of all their rights. The fact remains that permanent residents have a certain number of rights in Brazil that they can ask to have respected. [20] Consequently, everything suggests that the claimants obtained permanent residence in Brazil as their names appear on lists of people who were given access to permanent residence in Brazil,11 and the claimants stated that they obtained their permanent residence cards in 2012, but then lost them en route to the United States. [21] The panel concludes, on balance of probabilities, that the claimants had, in Brazil, through their permanent residence, status substantially similar to that of Brazilian nationals, in particular, that of freely entering the country, studying there, working there, and having access to social services there. They are therefore described in Article 1E of the Convention. [22] However, according to Zeng12 and as confirmed in Majebi,13 the Court of Appeal clearly established that the relevant date in response to the question of whether a claimant has permanent resident status is that of the hearing before the RPD. In the case at hand, the hearing was held on April 26, 2018, namely, more than two years after the claimants allegedly left Brazil on XXXX XXXX, 2015. As a result, the claimants alleged that they no longer had permanent resident status on the date of their hearing before the RPD. [23] The claimants stated that they cannot return to Brazil. They allege that they left Brazil illegally and therefore would be prohibited from returning there. They add that, given that they left Brazil over two years ago, they would have lost their permanent residence. When questioned if they obtained information as to whether they could maintain their permanent residence despite leaving the country over two years ago, the claimants responded no, indicating that they did not want to return to that country because of what they had experienced there. The panel, as analyzed below, is of the opinion that the claimants did not demonstrate that their situation in Brazil would meet the criteria of section 96 and subsection 97(1) of the Act. [24] The claimants stated that they left Brazil on XXXX XXXX XXXX 2015, and arrived in the United States on XXXX XXXX, 2016. They do not have any evidence of their departure from Brazil or of their travel to the United States. Since the panel did not believe the claimants with regard to their main allegation, and having found that they are not credible (see below), the panel, without any additional evidence, concludes that the claimants did not establish the date when they left Brazil.14 [25] Moreover, the claimants did not submit any evidence in support of their allegation that the fact that they left Brazil without going through customs and having their passport stamped would prevent them from returning to that country. The claimants also failed to submit any evidence demonstrating that the loss of permanent resident status in Brazil is automatic and without recourse with Brazilian immigration authorities. Although the documentary evidence15 indicates that permanent residents of Brazil lose their status if they are absent from the country for more than two years, it does not indicate how the loss occurs: whether it is automatic, whether there is recourse, whether it occurs when returning to Brazil or while outside the country. However, once the Minister demonstrated, prima facie, that the claimants had permanent resident status in Brazil-which is not disputed by the claimants-the burden of proof shifted to them and it became their responsibility to demonstrate that they no longer had that status16 at the time of the hearing, which they did not do. They did not even take any steps to demonstrate that they no longer had that status by going to the Embassy of Brazil, for example. [26] Consequently, the panel concludes that the claimants failed to demonstrate that they lost their permanent resident status in Brazil and that they cannot return there. [27] However, the claimants allege that they have a fear in Brazil. Credibility with regard to the male claimant's sexual orientation [28] In its assessment of the claimants' credibility, the panel considered Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression17 (SOGIE). [29] The Guideline invites members to consider the fact that people with diverse SOGIE recognize and act on their SOGIE differently. Also, their religion and belief system, their age, their culture, their education and what they experienced in their country of origin can have different impacts on their behaviour and their ability to testify before the IRB. [30] Therefore, a member should be prudent before criticizing a claimant with an orientation other than heterosexual, as in this case, for only being able to state that it is natural and he could not help himself when asked why, when he decided to marry his spouse, he continued his relationship with a man, without providing further explanations demonstrating a degree of reflection with regard to the situation he is in. Similarly, it would be a delicate matter to criticize the female claimant for her inability to explain, in a thoughtful manner, how and why, after learning that her spouse was having a relationship with a man, she decided to stay with him and continue their relationship, aside from stating that he is a good man to her, that she loves him and that she understood that it is natural for him to be who he is. Although the panel was not satisfied with their explications, it also understands that couples have different dynamics and rationales. The panel also considered that it is taboo to discuss non-heterosexual relations in Haitian culture. [31] That said, the panel still found that the claimants were not credible because of contradictions and omissions at the heart of their allegations, as illustrated below. [32] First, the panel would like to point out that the male claimant, on a number of occasions, wanted to intervene during the testimony of his wife, who was questioned first, in order to provide details in her place. Moreover, when he was questioned in turn, the male claimant, rather than responding to the panel's questions, tried, on a number of occasions, to tell his story. These two factors undermine their credibility. [33] The female claimant initially stated that her problems in Brazil began in 2014. When the panel asked her to be more specific, she stated that she married the male claimant on XXXX XXXX, 2014, and that the problems began two or three months later. When confronted by the panel regarding the fact that that meant that the problems began in January or February 2015, rather than in 2014, the female claimant agreed. The female claimant did not know when her problems began, which undermines her credibility. [34] The female claimant also made contradictory statements when the panel tried to understand through its questions what motivated her to stay with the male claimant after she discovered that he was having an affair with a man. When the panel asked her if she would have stayed with the male claimant if he had had affairs with women during their marriage, she responded no. To the same question, that is, if she would be willing to stay with the male claimant if he had affairs with men, she responded that, normally, it would not sit well with her, but that she loved him too much. Then, the panel asked her to confirm that if her spouse had affairs with women, she would leave him, but not if he had affairs with men. The female claimant stated then that even if he were cheating on her with women, she would not leave him. It is up to the female claimant to decide whether she would stay with her spouse based on the situation before her. However, the female claimant cannot state that she would leave her spouse and then respond that she would not leave him based on the panel's questions. These adjustments undermine her credibility. [35] With regard to the male claimant, he stated that he realized that he was attracted to men in late 2012. He explained that he lived with four men with whom he did everything. He stated that he began having feelings for XXXX XXXX XXXX and that, in 2012, he realized that he was attracted to men. When questioned as to when his relationship with XXXX began, he responded that it began about four months after he started living with the four men in XXXX 2011. The male claimant confirmed that his relationship with XXXX began in XXXX 2011 when they kissed. When the panel asked him how he reacted at that time, the male claimant explained that he felt that something was telling him that he was attracted to XXXX. He explained that they then had intimate relations for the first time. The male claimant was then confronted with his previous statement that he realized that he was attracted to men in late 2012, whereas he was now claiming that he began his relationship with XXXX in XXXX 2011. The claimant then stated that, in XXXX 2011, he experienced [translation] "love at first sight" but that it was not until 2012 that he realized that it was "natural." When the panel pointed out to him that the initial question was not when he had accepted his attraction to men as being something natural, but rather, when he realized that he was attracted to men, and that, in late 2012, he had already been in a relationship with XXXX for over a year, the male claimant could only respond that he had made a mistake. This greatly undermines his credibility. [36] The male claimant was also confronted with the fact that he failed to mention his relationship with XXXX in his account,18 a relationship that allegedly lasted nearly four years. The male claimant stated that he did not want it to cause any problems for his spouse, he did not want to upset her. The panel also pointed out to him that there was no indication that he had had a relationship with a man in the past, either with XXXX or with another man. The male claimant stated that his account was merely a summary. The panel then reminded him of the instructions written on the cover page of the BOC Form, as well as at question 2, where claimants are asked to "explain in detail" with regard to their refugee protection claim and write "everything that is important for [their] claim," including dates, names and places. When the panel pointed out that what was written in his account does not explain at all how what he experienced [translation] "effectively confirms [his] sexual orientation"-that is, indicating that he was living with three other men and that he felt good is not an indicator of his bisexuality-and that he should have written in his account that he had had a relationship with a man, the claimant explained that he had submitted into evidence messages that he had exchanged with men. When the panel tried again to find out why he did not write in his account that he had had a relationship with a man for over three years, a fact that is at the heart of his refugee protection claim, the male claimant responded that he did not mention XXXX name because of his wife. When the panel pointed out to him that he could have mentioned the relationship without indicating XXXX name, he responded that he had written in his account that his wife had pressured him and that he had had to admit it to her. Therefore, if his spouse was already aware of his relationship with XXXX, as she stated that she was (and also aware of her spouse's affairs with other men), nothing prevented him from writing that he had a relationship with a man. Furthermore, although the male claimant indicated in his account that he is bisexual, he does not explain at all that he had had a relationship to the point that the reader wonders what would make him state that he is bisexual. It is not the panel's role to read between the lines of an account and try to guess what a claimant wanted to write. Such an omission on a central aspect of his refugee protection claim, that is, that he had had a four-year relationship with a man in Brazil, as well as two others in the United States, and then in Canada, greatly undermines his credibility in the circumstances. The male claimant's explanations regarding that omission evolved as the panel asked its questions. He first explained that he had not wanted to upset his spouse, stated that his account was merely a summary, alleged that he had submitted documents in support of his allegations, then stated that his relationships with men can be inferred from the information in his account. All this fatally undermines his credibility. [37] The male claimant stated that his problems in Brazil began after he married the female claimant. When the panel asked him if he had had problems before his marriage in XXXX 2014, he responded that, maybe, people did not know about his relationship with XXXX or his sexual orientation. Shortly afterward, when the panel was surprised at the fact that he was able to maintain a relationship with XXXX for nearly three years without any problems, but that, two or three months after his wedding, problems arose all of a sudden, the male claimant changed his testimony and responded that he had already been the victim of insults before his wedding. When the panel confronted him with his previous testimony, which was completely contrary, the claimant stated that he had misunderstood the question and believed that the panel was asking him to identify the problems he had while he was married to the female claimant. The panel's question was very clear: What problems did he have before the wedding? That contradiction further undermines his credibility. [38] The male claimant was also questioned regarding the protection measures that he allegedly took to avoid problems in public, in the street. The male claimant merely stated that his orientation is natural and that he could not stop himself from holding XXXX hand or from responding to his kisses, and that in the grip of his emotions, he could not help himself. Despite the insults and threats that he allegedly received in the street, the male claimant did not provide evidence of any precautions. That does not demonstrate that the male claimant has a subjective fear, and it undermines his credibility in that it is implausible that a person who alleges they fear for their physical safety would not try to minimize his risks. Exhibit C-3: Message exchange [39] The male claimant submitted Exhibit C-319 titled [translation] "Email exchanges between XXXX and his boyfriend." When questioned, the male claimant stated that it was a message exchange on WhatsApp between him and three men with whom he had had a relationship: XXXX XXXX XXXX in Brazil, XXXX XXXX in the United States and XXXX XXXX in Canada. [40] First, the panel would like to point out that a number of passages in these exchanges are in Creole and were not translated, thereby violating subrule 32(1). Consequently, and considering the nature of the document, the panel does not understand the majority of the content of Exhibit C-3.20 The panel also notes that all the messages with these three men are dated between XXXX 2017 and XXXX 2018, that is, following the claimants' arrival in Canada and their refugee protection claim. [41] The male claimant was then confronted with the fact that the spelling of the names of those men changes from one message to the next. At page 5 of Exhibit C-3, XXXX name is written three different ways: XXXX, XXXX and XXXX. The male claimant then tried to explain that it was the person who sent the message who misspelled his name. However, in message applications like WhatsApp or Messenger, or even in texts, the person does not write their name before every message that he or she sends. Rather, it is the person's device that is sending the message that automatically indicates the name of the person so that they are identified in the telephone. Therefore, the claimant's response is not satisfactory. When confronted with this, he stated that it might have happened when he changed telephones and entered XXXX information in his new telephone. The panel then pointed out to him that, still on page 5 of C-3, XXXX sent him two messages one after another on XXXX XXXX at 5:08 p.m. with two different spellings: XXXX and XXXX. Given that these two messages were sent within a very short time frame on the same day, yet again, the male claimant's explanation does not hold water because he would not have been able to change his cellular telephone and information within that same minute. Consequently, the claimant tried to explain that, one night, the cellular telephone that he was using on Wi-Fi stopped working and that he had to change his cellular telephone. The panel confronted him with the two messages dated XXXX XXXX (at the top of page 5 of Exhibit C-3): one at 7:27 p.m. "XXXX" and another at 7:28 p.m. "XXXX." The male claimant stated that he could not explain it. [42] The panel pointed out to the male claimant that the same type of problem occurred with the messages from XXXX XXXX, whose name appears in turn as XXXX XXXX XXXX and XXXX on the messages appearing on pages 6 and 7 of Exhibit C-3. The claimant tried to then explain that, when he sent the copy of those messages to his lawyer to disclose them, he did not want his spouse to know and consequently asked a friend to do it for him. That does not explain the spelling differences in the names appearing in that document. [43] Consequently, the panel does not grant any probative value to Exhibit C-3, and is rather of the opinion that it is a fabrication by the male claimant. Moreover, the male claimant's adjustment of his explanations in line with the panel's reactions to his responses severely undermines his credibility. [44] For all these reasons, the panel finds that the claimants are not credible and therefore does not believe their allegations that the male claimant is bisexual, that he had had intimate relations with men or that he could be perceived as bisexual, and that he would consequently face persecution, both in Brazil and in Haiti, within the meaning of the Convention. Fear of returning to Brazil by reason of their Haitian origin [45] The claimants allege that they fear returning to Brazil because Brazilians discriminate against Haitians there and the government would not do anything to protect them. The claimants also allege that they fear returning there because of the male claimant's sexual orientation. Since the panel has already ruled on that topic, it will now decide on the situation of Haitians in Brazil. [46] The claimants stated that they were discriminated against in Brazil in relation to employment, in everyday life while taking the bus and with regard to access to rights to which they are entitled as permanent residents of Brazil. The female claimant stated that, when she waited for the bus, Brazilians pushed her so that they could enter before her and that Brazilians went before Haitians at appointments with professionals or in stores. [47] As the panel stated above, some foreigners have had to deal with abuse by employers who have tried withholding medical insurance or underpaying employees who were not necessarily aware of all their rights. The fact remains that permanent residents have a certain number of rights in Brazil that they can demand to have respected. [48] Moreover, the panel is aware that the economic and social situation has deteriorated in Brazil following the Olympic Games and the World Cup, which created numerous construction jobs that no longer exist today. The panel is aware that, with a decrease in employment levels, it would be more difficult to find work and that a degree of racism exists in a difficult economic context, which results in hesitation to hire a foreigner or rent him or her housing when that same foreigner has little economic means available. Still, even through accumulation, that does not amount to persecution. [49] With regard to crime, the evidence indicates that Brazil, where 85,000 Haitians have arrived since 2012,21 has one of the highest murder rates in the world and that crime and police violence are serious problems in Brazilian cities.22 The evidence23 also indicates: 50. The Special Rapporteur was shocked to learn about the levels of violence in Brazil. Regrettably this violence has a clear racial dimension. Of the 56,000 homicides that occur each year, 30,000 victims are between 15 and 29 years old, of which 77 per cent are Afro- Brazilian male youth. What is disconcerting is that a significant number are perpetrated by the State, often through the apparatus of the military police. Research reveals that the number of Afro-Brazilians who have died as the result of police actions in the state of São Paulo is three times greater than that registered for the white population. In Rio de Janeiro, in 2013, nearly 80 per cent of the victims of homicides resulting from police interventions were Afro-Brazilian, of whom 75 per cent were youth between 15 and 29 years of age. In addition to the killings committed by police on duty, it is believed that a large number of deaths are also caused by so-called death squads and militias made up primarily of civil and military police and other agents of the State (see A/HRC/11/2/Add.2). [50] That said, the panel notes that the male claimant did not, at any time, state that he fears the actions of the police and the state apparatus, or gangs or other militias. [51] The evidence also indicates:24 Overall, Brazil is one of the most violent countries in the world, with a homicide rate of 27.1 per 100,000 inhabitants in 2011. As in other parts of Southern and Central America, a large part of this violence and criminality can be linked to organized crime groups participating in drug trafficking. The murder victims are frequently young black men from poor urban areas who are constantly recruited by drug gangs. 25 [52] Consequently, while is true that the black youth are overrepresented in terms of homicide, this excerpt indicates that the victims are killed mainly because of a negative socio-economic context, which pushes them to be recruited by drug cartels in the poorest urban areas, and not because of persecution targeting black people or people of Haitian origin. [53] For all these reasons, the panel concludes that the claimants failed to demonstrate that, if they returned to Brazil, they would face a serious possibility of persecution by reason of their ethnicity or another ground, or that, on a balance of probabilities, they would be subjected to a danger of torture, a risk of cruel or unusual treatment or punishment or a risk to their lives under subsection 97(1) of the Act. Exclusion of the claimants [54] Given the above analysis to the effect that the claimants failed to demonstrate that, in Brazil, they would face persecution or a risk within the meaning of subsection 97(1) of the Act, the panel determines that the claimants are excluded from the definition of "Convention refugee" and "person in need of protection" under section 98 of the Act. [55] Furthermore, even if the panel had come to the conclusion that the claimants had lost their permanent resident status on the date of the hearing, the panel is guided by the words of the Federal Court in Zhong:26 The Board considered the Applicants' status in Ecuador at the time they made their claim for refugee protection in Canada, and their status in Ecuador at the time of the hearing. The Board attempted to elicit an explanation for why the Applicants allowed their status to lapse. The responses indicated that the lapse in status was a result of the Applicants' voluntary inaction. The Board went on to examine the reason the Applicants chose not to renew their status. The Board was not persuaded that the Applicants' alleged fear of mistreatment in Ecuador was a reasonable justification for failing to take any action to maintain their status. The Board then went on to examine the substance of the claim of the alleged fear and also found it wanting. Consequently, I am unable to find that the Board erred in concluding that the Applicants were excluded under Article 1(E) of the Convention. [56] Similar to that decision, the claimants in the case at hand did not take any steps to retain their status in Brazil. Rather, they allege that they do not want to return to Brazil, stating that they would be doubly persecuted, that is, by reason of their Haitian origin and the male claimant's bisexuality. [57] The panel, having found that the claimants are not credible in their allegations that the male claimant is bisexual and, therefore, that they failed to demonstrate that they would face persecution both in Haiti and Brazil in that regard; having concluded that the claimants failed to demonstrate that they would face persecution in Brazil based on the colour of their skin or their Haitian origin; and because the claimants did not allege any other fear of persecution or risk within the meaning of subsection 97(1), either in Brazil or in Haiti, concludes that the fears cited by the claimants to explain their lack of efforts in terms of maintaining or renewing their status as permanent residents of Brazil are not reasonable. [58] Consequently, taking into consideration the various factors to be weighed according to Zeng,27 that is, that the claimants allegedly voluntarily let their permanent resident status expire by leaving Brazil and their subsequent inaction in terms of maintaining their status, without a reasonable excuse; that the claimants did not demonstrate that they could not return to Brazil; that the claimants did not demonstrate that they would face persecution or a risk within the meaning of subsection 97(1) of the Act, both in their country of origin, Haiti, and in their country of permanent residence, Brazil; that the claimants, without providing any evidence, allegedly applied for asylum in the United States, but abandoned their application to come and claim protection in Canada; and that the panel concluded that the claimants have neither a fear nor a risk within the meaning of the Act, either in Haiti or Brazil, excluding them does not violate Canada's international obligations. [59] For all these reasons, taking into consideration all aspects of their refugee protection claim, the panel determines that, on a balance of probabilities, the claimants are described in Article 1E of the Convention and are excluded from the definition of "Convention refugee" and "person in need of protection" under section 98 of the Act. [60] Finally, even if the panel had not concluded that the claimants are excluded, given the above analysis of the claimants' credibility regarding their allegation that the male claimant is bisexual, and given that they did not allege any other fear of returning to Haiti, the panel would have concluded that the claimants failed to demonstrate that there is a serious possibility that they would be persecuted in Haiti on one of the Convention grounds or that, on a balance of probabilities, they would be personally subjected to a danger of torture, a risk to their lives, or a risk of cruel or unusual treatment or punishment if they returned. CONCLUSION [61] After reviewing all the evidence on the record, the panel determines that the claimants, XXXX XXXX and his spouse, XXXX XXXX XXXX cannot be "Convention refugees" or "persons in need of protection" under section 98 of the Act because they are described in Article 1E of the Convention given their permanent residence in Brazil. [62] Consequently, their refugee protection claim is rejected. Anne Bardin Anne Bardin May 25, 2018 Date IRB translation Original language: French 1 Document 1 - Basis of Claim Form (BOC Form); Document 5 - Amended account. 2 Document 6 - Minister's intervention, November 27, 2017. 3 Document 6 - Exhibits M-2 and M-3. 4 Document 3 - National Documentation Package on Brazil (January 31, 2018), Tab 3.4: Response to Information Request BRA105515.FE, Immigration and Refugee Board of Canada, May 25, 2016. 5 Idem and Document 3 - National Documentation Package on Haiti (October 30, 2017), Tab 3.12: Response to Information Request ZZZ105986.FE, Immigration and Refugee Board of Canada, October 3, 2017. 6 Document 2 - Information package provided by the Canada Border Service Agency (CBSA) and/or Immigration, Refugees and Citizenship Canada (IRCC), formerly Citizenship and Immigration Canada. 7 M.C.I. v. Zeng, Guanqiu (F.C.A., No. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010, 2010 FCA 118, at paragraph 28. 8 Document 6 - Exhibit M-3. 9 Document 6 - Exhibit M-2. 10 Document 3 - National Documentation Package on Brazil (January 31, 2018), Tab 3.4: Response to Information Request BRA105515.FE, Immigration and Refugee Board of Canada, May 25, 2016. 11 Document 6 - Exhibits M-2 and M-3. 12 M.C.I. v. Zeng, Guanqiu (F.C.A., No. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118. 13 Majebi v. M.C.I. (F.C.A., No. A-52-16) McLachlin, Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, November 9, 2016, 2016 FCA 274. 14 Elazi v. Canada (M.C.I.), (No. IMM-1038-99), Nadon, February 17, 2000. 15 See footnote 5, Tab 3.12. It should be noted that Tab 3.4 (see footnote 4) refers to a permanent "visa" and not to "permanent residence." 16 Canada (Citizenship and Immigration) v. Tajdini, 2007 FC 227, at paragraph 36. 17 Immigration and Refugee Board: Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Effective date: May 1, 2017. 18 Document 1. 19 Document 4 - Exhibit C-3: Email exchange between XXXX and his boyfriend. 20 Idem. 21 Document 3 - Brazil, Tab 2.1: Brazil. Country Reports on Human Rights Practices for 2016, United States. Department of State, March 3, 2017, page 11. 22 Document 3 - Brazil, Tab 7.2: Response to Information Request BRA104224.E, Immigration and Refugee Board of Canada, November 13, 2012. 23 Document 3 - Brazil, Tab 13.2: Report of the Special Rapporteur on minority issues on her mission to Brazil, United Nations. Human Rights Council, February 9, 2016. 24 Document 3 - Brazil, Tab 7.2: Response to Information Request BRA104224.E, Immigration and Refugee Board of Canada, November 13, 2012. 25 Document 3 - Brazil, Tab 7.9: Drugs and Drug Trafficking in Brazil: Trends and Policies. Improving Global Drug Policy: Comparative Perspectives and UNGASS 2016, Brookings, April 29, 2015, page 3. 26 Zhong v. Canada (Citizenship and Immigration), 2011 FC 279, paragraph 28. 27 Supra, footnote 12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 16 Immigration and Refugee Board of Canada Refugee Protection Division Commission de l'immigration et du statut de réfugié du Canada Section de la protection des réfugiés RPD.29.01 (May 12, 2017) RPD File No. / No de dossier de la SPR : MB7-11108 MB7-11205