MB8-23057

RAD File No. / No de dossier de la SAR : MB8-23057 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, QC Appel instruit / entendu à Date of decision February 24, 2021 Date de la décision Panel Roxane Vachon Tribunal Counsel for the person who is the subject of the appeal Me Jamal Addine Fraygui Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Me Nadine Saadé Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX, the appellant, is originally from Haiti. He is appealing the decision of the Refugee Protection Division (RPD) rendered on October 1, 2018, rejecting his claim for refugee protection. [2] The appellant alleges an attack, in XXXX 2012, during which a group of criminals entered the family home, struck his father on the head, and spat in his face before taking all the money. As they fled, the criminals threatened to kill the family. The father apparently took steps to finance his family's departure. The appellant obtained a visa for Brazil, where he arrived in XXXX 2013. Due to the economic hardship and tension experienced by Haitians in Brazil during the economic crisis, the appellant left Brazil in XXXX 2016 and arrived in the United States in XXXX 2016, which he left on XXXX XXXX, 2017, to come to Canada, where he claimed refugee protection. [3] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the RPD, alleging that the appellant should be excluded under Article 1E of the Convention because he can obtain permanent residence in Brazil, and under Article 1F(b) because of serious non-political crimes. [4] The RPD concluded that the appellant was not excluded under articles 1E and 1F(b) of the Convention. With respect to the allegations regarding the events in Haiti, the RPD found the appellant credible, but concluded that the appellant did not establish a risk that differs from that of other Haitians, namely, he did not demonstrate that he is subjected personally to a risk that is not generally faced by other citizens in his country. [5] The appellant also alleges that he was a victim of discrimination in Brazil, and specifically, he alleges that Haitians are the scapegoats for the economic crisis in Brazil and that it is difficult for him to find a job in Brazil enabling him to financially support his wife in Brazil and his child in Haiti. [6] The determinative issues before the RPD were exclusion under articles 1E and 1F(b) of the Convention and whether the risks are not faced by other Haitians in the same situation as the appellant. These issues remain the same before the Refugee Appeal Division (RAD). [7] On December 10, 2020, I asked for clarifications regarding the criminal offences, and on December 21, 2020, I asked the parties to make new submissions regarding the issue of exclusion under articles 1E and 1F(b). The Minister, who intervened before the RPD on the issue of exclusion, did not make additional submissions regarding the issue of the 1F(b) exclusion and he states that the RPD erred in accepting the appellant's testimony to establish the loss of his permanent resident status and that it erred in failing to weigh the factors set out in Zeng1 in its analysis of the 1E exclusion. DETERMINATION [8] I dismiss the appeal and confirm, for other reasons, the RPD's determination, namely, that the appellant is neither a Convention refugee nor a person in need of protection. The RPD erred in its conclusion to not exclude the appellant under Article 1E. The appellant is excluded under Article 1E of the Convention. ROLE OF THE REFUGEE APPEAL DIVISION [9] I will review the RPD's decision by applying the standard of correctness, after conducting an independent assessment of all the evidence before me.2 ANALYSIS Exclusion under Article 1E of the Convention [10] After analyzing the objective evidence in the National Documentation Packages (NDPs) of the Immigration and Refugee Board of Canada (IRB), the RPD concluded that the appellant was not excluded from the application of the Convention. The RPD concluded that the appellant no longer had status in Brazil at the time of the hearing. The Minister challenges this in his submissions dated December 29, 2020. For my part, I accept the appellant's testimony that he has lost his permanent resident status. His testimony is consistent with the objective documentary evidence. However, the RPD completely failed to analyze the factors in Zeng.3 This case sets out the criteria to be assessed when applying Article 1E of the Convention: 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 factors. Reason for losing permanent resident status in Brazil [11] The appellant obtained permanent residence in Brazil and lost it after spending over two years outside the country. [12] I conducted an independent analysis of the evidence and I concluded that the appellant voluntarily lost his permanent resident status in Brazil. The problems the appellant allegedly faced, according to his testimony, included difficulty finding work to support his family, as well as discrimination, and the stigma of being Haitian in Brazil. He testified about racist comments and a discriminatory climate. [13] The incidents described by the appellant do not amount to persecution and the appellant failed to prove, on a balance of probabilities, that the discrimination against him at the time that he left Brazil rose to the level of persecution or a threat to his life. In particular, I note that the appellant did not report any incidents of violence or assault. He did not testify that he believed his life was in danger, and the evidence establishes that his departure from Brazil was motivated by economic reasons. [14] In his submissions dated January 6, 2021, the appellant submits that he was a victim of racism, as were other members of the Haitian community, in relation to his economic problems in Brazil. He refers to the objective evidence stating that Haitians are subjected to exploitation and discrimination in Brazil and, therefore, his departure was not voluntary. [15] Discrimination is real in Brazil. However, I note that there are laws against racial discrimination and incitement to racial discrimination. Discrimination based on race is prohibited with respect to access to public or private space, employment and housing. There is legislation promoting equity.4 I acknowledge that Afro-Brazilians and dark-skinned people frequently face discrimination and that acts of discrimination against refugees increased in 2016/2017.5 Brazil is increasingly becoming a country of destination for migrants, as well as refugees and asylum seekers,6 who are often in vulnerable situations in society, even though they have adequate access to social services. Some Haitian refugees have been victims of violent attacks on account of their race and nationality, but the appellant does not allege any violent incident incited by the general population of which he was allegedly a victim because of his race. [16] Referring to the specific situation of Haitians in Brazil, the Federal Court explicitly differentiates between discrimination and persecution: [29] However, for discrimination against a person to amount to persecution, it must be serious and occur with repetition, and must 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 livelihood. [30] In light of the evidence, it is my opinion that the RAD could reasonably conclude that the discrimination alleged by Mr. Noel did not amount to persecution. Mr. Noel did indeed work in Brazil at a time when, by his own admission, the country was going through an unemployment crisis. His allegations that some Brazilians have a racist attitude towards Haitians are albeit very unfortunate, insufficient to conclude that Haitians are being persecuted.7 [17] The Minister submits that, despite Haitians' unpleasant situation in Brazil, permanent residents of Haitian origin have the same rights as Brazilians. [18] I agree, and I conclude that the appellant did not establish, as per Zeng, that when he left-and not prospectively-his family was in a situation that amounted to a serious possibility of persecution, or that their lives were at risk or that their personal circumstances were such that the decision to leave the country was the only possible choice. The difficulties alleged by the appellant for leaving Brazil are not sufficient reasons to justify qualifying the departure as involuntary. [19] I conclude that the appellant left Brazil voluntarily, which weighs in favour of his exclusion under Article 1E of the Convention. Possibility of returning to Brazil [20] The RPD considered that the documentary evidence on the record established that the appellant did not have a right of return to Brazil. [21] I cannot agree with this analysis. The evidence on the record establishes that the appellant is married8 and that his spouse was a permanent resident of Brazil at the time of the RPD hearing. As the spouse of a permanent resident in Brazil, the appellant could obtain a temporary visa for family reunification, under Article 45 of Decree No. 9,199 of 2017, provided that certain administrative conditions were met. According to articles 65 and 66 of Law No. 13,445 of 2017, he could be granted Brazilian naturalization after one year of residence in Brazil.9 I am therefore of the view that the appellant has a right of return to Brazil, which weighs in favour of his exclusion. [22] In correspondence sent on December 21, 2020, the RAD disclosed the IRB's new NDP by specifically requesting submissions regarding the appellant's possibility of obtaining permanent residence in Brazil as the spouse of a woman who has Brazilian permanent residence, under the principle of family reunification. In his submissions dated December 29, 2020, the appellant's lawyer submits that the appellant's spouse had contacted a lawyer in Brazil who was of the opinion that it would be difficult for her to sponsor her spouse because the appellant left Brazil over four years ago and his spouse did not work. The lawyer's legal opinion was not filed on the record. The lawyer's assertions are therefore not supported by any evidence and do not rebut the documentary evidence that there is a family reunification program in Brazil. It was not established that family reunification would not be available to the appellant, and I reject the argument. [23] Consequently, I am of the opinion that the appellant has a right of return to Brazil, which weighs in favour of his exclusion under Article 1E of the Convention. Risks in Haiti [24] The RPD concluded that the appellant was not subjected personally to an ongoing or future risk within the meaning of paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA), which weighed in favour of his exclusion under Article 1E of the Convention.10 The appellant submits that he would be at risk if he had to return to Haiti, because he would be personally targeted on a daily basis by criminals who would know that he had lived in the United States and Canada and would think him wealthy.11 [25] At the RPD hearing, the appellant conceded that his father still lives in Haiti and has experienced no incidents since XXXX 2015. He testified that his father continues to run a business and maintains a low profile. He takes public transportation to avoid being identified as wealthy. [26] The RPD considered that the problems related to the perception that people from the diaspora returning to Haiti are wealthy are part of the generalized situation of insecurity in Haiti.12 [27] According to the documentary evidence in this regard,13 which was disclosed to the appellant for the purpose of his making submissions, returnees to Haiti risk being targeted because they are considered to be wealthy. However, several sources state that the risks are not automatic and depend on a number of factors, none of which correspond to the appellant's situation.14 [28] The appellant did not demonstrate that his personal circumstances corresponded to any of the situations where the risk of being targeted by criminals upon his return would be greater than for the rest of the Haitian population. I therefore conclude that the RPD did not err in its analysis with respect to this issue. Canada's international obligations [29] Given the aforementioned conclusions, I consider, like the RPD, that the appellant's exclusion under Article 1E of the Convention does not breach Canada's international obligations regarding the protection of refugee claimants. In particular, I note the conclusions that the appellant has a right of return to Brazil and that he would not face risks as defined in paragraph 97(1)(b) of the IRPA. CONCLUSION ON THE 1E EXCLUSION [30] I therefore conclude that the appellant should be excluded from the application of the Convention under section 98 of the IRPA. ANALYSIS OF 1F(b) EXCLUSION [31] The RAD gave the appellant notice regarding its intention to examine the RPD's conclusions on exclusion under Article 1F(b) of the Convention. [32] The RPD concluded that the appellant was not excluded by the application of Article 1F(b). Before the RAD, the Minister did not make submissions on this issue when invited to do so. [33] The Minister's evidence before the RPD demonstrates that, during a search of the appellant's home upon the appellant's arrival in Canada, border authorities found a child pornography video on the appellant's telephone. The appellant does not deny that the video was on his telephone or that it was his telephone. However, he alleges that his spouse sent him the video the day before he left for Canada to illustrate how corrupt society is. The appellant testified that he never saw the video and was unaware of its content. [34] The RPD found the appellant credible on the issue of his lack of knowledge of the video because he had maintained the same version of events from the time of the seizure up to his hearing. The appellant's spouse confirms in a letter that she sent the video to her spouse. After analyzing the case law, the RPD concluded that this is not a serious crime. I consider the appellant's explanation that he was unaware of the video, which his spouse sent to him as an example of corrupt society, to be lame. However, for reasons different from the RPD, I conclude that the RPD was correct to conclude that the appellant is not excluded under Article 1F(b). [35] The appellant does not dispute that these events may constitute crimes or offences whose equivalents in Canada are crimes described in paragraph 163.1(4)(a) of the Criminal Code. [36] The RPD concluded that these crimes are not serious crimes within the meaning of Article 1(f)(b) of the Convention. Although I agree with the RPD's conclusions, I conclude that it erred in some of its conclusions. [37] In Febles,15 the Supreme Court states that there is a presumption regarding homicide, rape, child molesting, wounding, arson, drug trafficking, and armed robbery, which are described as serious crimes. In the same paragraph, it states that crimes punishable by a maximum sentence of 10 years or more are also generally considered serious. However, these presumptions may be rebutted. [38] In this case, the RPD considered that the fact that the Canadian authorities did not lay criminal charges leads to the conclusion that the offence is not a serious offence. In other words, if the offence was serious, the Canadian authorities would have laid charges against the appellant. This conclusion is erroneous. The application of Article 1F(b) of the Convention deals with cases where a person has committed a serious non-political crime outside the country of refuge prior to their admission to that country as a refugee. Criminal charges need not be laid in Canada, and this analysis factor is not relevant in determining whether it is a serious non-political crime. [39] The American authorities did not lay charges in this matter, since the appellant was intercepted at the Canadian border by the Canadian authorities. The facts in the peace officers' report correspond to the offence of possessing child pornography under paragraph 163.1(4)(a) of the Criminal Code. [40] Since 2005, the offence of possessing child pornography (para. 163.1(4)(a)) of the Criminal Code has been punishable by imprisonment for a term of not more than five years. Since August 9, 2012, the minimum sentence has been six months. [41] Although the link between possession of child pornography and harm to children can sometimes be tenuous, the Supreme Court in R. v. Sharpe16 states that: The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences. [42] The crime of possessing child pornography is a serious crime that compromises children's integrity. Parliament has acknowledged the seriousness of these offences by imposing a minimum term of imprisonment. [43] The case law17 has established factors for assessing the seriousness of the offence of possessing child pornography. These factors are: [Translation] * The nature of the material and the degree of child pornography presented; * The expressive form used (photographs, videos, drawings, sound clips, or texts); * The amount of material accumulated and stored and the method of obtaining it (free or paid access); * The age of the children; * The intended use of the material (production, redistribution for profit or not, use for sexual pleasure, addiction, etc.); and * The degree of danger the accused may pose to children (profile of a pedophile or previous harmful acts towards children). [44] In the appellant's case, the material is graphic and very explicit, and the children are of a very young age. Otherwise, the appellant had a single video on his cellphone. There is no evidence to conclude that the appellant wanted to redistribute the material. The evidence does not establish that the appellant is a dangerous person with a criminal history of harming children. [45] I reviewed the case law involving accused individuals without any criminal history in similar cases. The sentences range between six months and one year and are based on the amount of pornographic material.18 In Gagné c. La Reine,19 the Quebec Court of Appeal reiterates what it already stated in St-Pierre c. La Reine,20 that the range of sentences for the crimes of distributing and possessing child pornography was six months to two years. Although community-based sentences could once be served for the offence of possessing child pornography, with the imposition of the minimum term of imprisonment, this is no longer an option. [46] Consequently, I consider that the appellant would likely have been sentenced to a minimum term of imprisonment of six months. I am of the view that, although the offence of possessing child pornography is reprehensible and objectively serious, the facts in this case are at the lower end of the severity scale. The RPD did not err in concluding that the appellant did not commit, prior to his arrival in Canada, serious non-political crimes. Therefore, he is not subjected to the 1F(b) exclusion clause. CONCLUSION ON 1F(b)EXCLUSION [47] I therefore conclude that the appellant should be excluded from the application of the Convention under section 98 of the IRPA. [48] The appellant did not demonstrate that his personal circumstances corresponded to any of the situations where the risk of being targeted by criminals upon his return would be greater than for the rest of the Haitian population. I therefore conclude that the RPD did not err in its analysis with respect to this issue. CONCLUSION [49] I dismiss the appeal and confirm the RPD's determination, namely, that the appellant is excluded from protection under Article 1E of the Convention. (signed) Roxane Vachon Roxane Vachon February 24, 2021 Date IRB translation Original language: French 1 Zheng v. Canada (Citizenship and Immigration), 2019 FC 904. 2 Canada (Citizenship and Immigration) v. Huruglica Federal Court of Appeal Decisions 2016 FCA 93. 3 Zheng v. Canada (Citizenship and Immigration), 2019 FC 904. 4 National Documentation Package (NDP), Brazil, April 30, 2018, Tab 2.7: National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21: Brazil. Brazil. February 27, 2017. A/HRC/WG.6/27/BRA/1. 5 NDP, Brazil, April 30, 2018, Tab 2.2: Brazil. Amnesty International Report 2016/2017: The State of the World's Human Rights. Amnesty International. 2017. 6 NDP, Brazil, April 30, 2018, Tab 13.2: Report of the Special Rapporteur on minority issues on her mission to Brazil. United Nations. Human Rights Council. February 9, 2016. A/HRC/31/56/Add.1. 7 Noel v. Canada (Citizenship and Immigration), 2018 FC 1061. 8 Marriage certificate, Refugee Protection Division (RPD) record P-7. 9 NDP, Haiti, March 29, 2019, Tab 14.11: Brazil and Haiti: Situation of Haitians in Brazil, including rights and obligations; permanent resident status; documents issued to Haitians, including Foreigner Identity Cards..., Immigration and Refugee Board of Canada (IRB). June 21, 2018. ZZZ106127.FE; NDP, Haiti, September 1, 2020, 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, IRB, April 15, 2019, ZZZ106283.FE. 10 RPD decision, paras. 25, 33 11 Appellant's affidavit, paragraphs 27-28. 12 RPD decision, p. 13 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), IRB, May 25, 2016. BRA105515.FE. 14 NDP, Haiti, September 1, 2020, Tab 14.1: Treatment by society of Haitians who have lived for a long time abroad, especially in Canada, after they return to their country; whether they are at risk of being victims of violence, and including the... IRB. August 27, 2020. HTI200334.FE. 15 Febles v. Canada, 2014 SCC 68 (2014) 3 S.C.R. 431. 16 R.v. Sharpe [2001] 1 S.C.R. 45, 2001 SCC. 17 R. c. Chassé 2002 CanLII 23659 (QC CQ). 18 R. c. Lalbin, 2013 QCCQ 2010, R. c. Rainville, 2013 QCCQ 3524. R. c. Auger Saint-Laurent, 2012 QCCQ 9440, R. c. Castonguay, 2012 QCCQ 9440, R. c. Gaudreau, 2012 QCCQ 5669. 19 Gagné c. La Reine 2011 QCCA 2387 (CanLII). 20 St-Pierre c. R., 2008 QCCA 893. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-23057 RAD.25.02 (January 2020) Disponible en français 3 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