MB8-10577

RAD File No. / No de dossier de la SAR : MB8-10577 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 June 21, 2019 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal Jean-Marie Hercules Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] The appellant, XXXX XXXX, is a citizen of Haiti. He is appealing against the decision of the Refugee Protection Division (RPD) from April 3, 2018, rejecting his refugee protection claim filed pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). OVERVIEW [2] The appellant alleges that in Haiti, he was a spokesperson for young planters in XXXX, a group invested in the development of their community. In that capacity, he called on the authorities to provide assistance to farmers. Youths claiming to be close to the Martelly government did not like their initiative. As a result, the appellant alleges, armed individuals came to his home on XXXX XXXX XXXX 2012, to kill him. Fortunately, he was not home, but his uncle was killed in the attack. The appellant then took refuge at a neighbour's house, and on XXXX XXXX, 2013, he left Haiti for Brazil. [3] In Brazil, the appellant obtained permanent resident status. However, he alleges that he was attacked there and received death threats. On XXXX XXXX, 2015, he was beaten by a group of five Brazilians as he was returning home from work after a delivery. These individuals threatened to kill him, complaining that Haitians are taking jobs away from Brazilians. He wanted to file a complaint with the police, but a Brazilian told him that the police are allied with the gangs. [4] The appellant was the victim of another attack in March 2015. During a delivery, he and his colleague were kidnapped by five armed individuals, including a member of the group who had attacked him the first time. The criminals took their addresses and telephone numbers. Then they took the company truck and released the appellant and his colleague in a remote location, threatening to kill them if they were ever tracked down. [5] In late June 2016, the appellant was told by his employer that the police had arrested one of the criminals. The appellant moved to another home to hide. He then started receiving death threats by telephone. His colleague told him that he had been attacked again by two of the criminals, but managed to escape. The appellant tried to report these incidents to the police on XXXX XXXX, 2016, but the police did not take his complaint. He then received a call from an individual who informed him that he was aware that the appellant had filed a complaint with the police. [6] Finding himself without protection, the appellant left Brazil on XXXX XXXX, 2016, for the United States. He then went to Canada on XXXX XXXX, 2017, where he claimed refugee protection. The appellant still fears for his life in both Haiti and Brazil. [7] Having concluded that the appellant had permanent residence in Brazil and that he failed to establish a future risk in his country of residence as a result of his lack of credibility, the RPD excluded the appellant under Article 1E of the Convention relating to the Status of Refugees1 (the Convention). [8] The appellant submits generally that the RPD erred when it determined that he was excluded, considering the alleged risk in Brazil. On the matter of credibility, the appellant alleges that his former lawyer was responsible for the omissions in his Basis of Claim Form (BOC Form). The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal and recognize him as a person in need of protection.2 [9] After conducting an independent analysis of all the evidence on the record, including the recording of the hearing, I find that that RPD did not err by rejecting the appellant's claim. [10] The appeal is dismissed. ROLE OF THE REFUGEE APPEAL DIVISION [11] The RAD must review the RPD decision and undertake its own analysis on the basis of all the evidence on the record in order to determine whether, in the light of all the arguments advanced by the appellant, the RPD erred. Contrary to the appellant's allegations, the standard of review for findings of fact, law or mixed fact and law is correctness. In certain cases where the RPD enjoys a real advantage, the RAD will show deference and explain its reasons.3 This is done on a case-by-case basis.4 [12] I find that the standard of review that applies in this case is the standard of correctness. NEW EVIDENCE AND THE RIGHT TO A HEARING BEFORE THE REFUGEE APPEAL DIVISION [13] The appellant submitted three documents in support of his appeal as new evidence: a photograph of his uncle XXXX XXXX dead body as well as his death certificate and a complaint filed at the XXXX XXXX XXXX XXXX, Haiti.5 The appellant left it to the discretion of the RAD to decide whether it is necessary to hold a hearing.6 [14] I note that this evidence was already submitted before the RPD and is on the record,7 so it is not new evidence. I also note that this evidence is related to the allegations regarding the events in Haiti. Given that the panel is dealing only with the issue of exclusion in connection with Brazil, which it finds determinative in this case, this evidence is not relevant for the disposition of this appeal. ANALYSIS Issue of exclusion [15] It should be noted that to make a finding of exclusion under Article 1E of the Convention, the panel must conduct a two-pronged analysis. First it must determine whether the refugee protection claimant, in the third country, benefits from a status that confers substantially the same rights and obligations as those enjoyed by citizens of that country. The second prong consists in determining whether, notwithstanding the claimant's rights associated with that status in the third country, the claimant would face a serious possibility of persecution by reason of any of the five Convention grounds or one of the risks set out in section 97 of the IRPA. Permanent resident status in Brazil [16] I find that the RPD correctly concluded in paragraphs 11 to 19 that the appellant held permanent resident status in Brazil, giving him substantially similar rights to those of Brazilian nationals. At the time of the hearing before the RPD, the appellant was still within the legal time limit to return to Brazil. The appellant did not dispute these findings. Risk in Brazil [17] The RPD found the appellant not to be credible with respect to the alleged risk in Brazil, owing to the many omissions and contradictions in his evidence. [18] The appellant contends that the RPD erred in finding that he was excluded, given that he was persecuted in Brazil. The appellant contends that his former counsel8 is to blame for the omissions in his BOC Form about this persecution in Brazil, as well as the delay in submitting the evidence in support of the allegations regarding Haiti. [19] I agree with the RPD's conclusions in paragraphs 20 to 27, where it finds the appellant not to be credible in relation to his allegations of persecution in Brazil. [20] The RPD made an adverse credibility finding because the appellant failed to mention his problems in Brazil on his original BOC Form, declaring them only seven days before the hearing on March 28, 2018. At the hearing, the appellant indicated that he did not know that he was supposed to mention Brazil in his claim for refugee protection, since he was not a citizen of Brazil. [21] I agree with the RPD that this explanation is unsatisfactory, considering that the appellant alleges he left Brazil to flee persecution in Haiti. However, he could not stay there because he was also allegedly being persecuted in that country as well. It is hard to believe that the appellant would omit such an important part of his story in his claim for refugee protection in Canada just because he did not have Brazilian citizenship. The BOC Form clearly states that the claimant must indicate the countries where he or she is at risk of serious harm, regardless of the claimant's nationality. [22] What is more, the appellant was represented by counsel when he filled out his BOC Form.9 The appellant and his counsel had been aware of the possibility of exclusion since September 8, 2017, through the notice sent by the RPD to the Minister. I find that taking five months to make such an important amendment to a claim for refugee protection undermines the appellant's credibility. [23] The appellant claims that his former counsel is to blame for this omission and the late amendment. I note that the appellant did not follow the steps in the IRB Practice Notice,10 which states that the appellant must notify his former counsel of the allegations against them and provide them the opportunity to respond. [24] Nevertheless, as explained above, I find that the appellant's failure to mention the harm in Brazil at the first opportunity in his BOC Form significantly undermines the credibility of these allegations. [25] The RPD also identified contradictions in the appellant's testimony, as well as in his BOC Form, that further undermine his credibility. The appellant did not specifically dispute these findings. These are contradictions on an important aspect of his claim for refugee protection, namely, when it was that he took refuge in order to escape from his attackers in Brazil. [26] The appellant indicated that he moved after the first attack in Brazil, in February 2015, and then stated that he moved after the second attack, in March 2015. According to his amended BOC Form, the appellant moved in June 2016, while according to his immigration form IMM-5669, he resided at the same address in Brazil. By finding the appellant's explanations to be unsatisfactory, the RPD made an adverse credibility finding. [27] Based on the foregoing, I find that the RPD was justified not to believe the appellant's allegations of risk in Brazil. [28] Accordingly, I find that the RPD did not err by excluding the appellant by reason of his permanent resident status and the absence of risk in Brazil. [29] Finally, the appellant submits that, since he was still being pursued in Haiti, the panel should apply a more lenient test to him.11 I cannot accept that argument, which is irrelevant to the analysis of exclusion in this case. CONCLUSION [30] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the determination of the RPD that the appellant, XXXX XXXX, is excluded from Canada's protection under Article 1E of the Convention and, consequently, is not a Convention refugee or a person in need of protection under section 98 of the IRPA. (signed) Bianca Eleonora Suciu Me Bianca Eleonora Suciu June 21, 2019 Date IRB translation Original language: French 1 189 U.N.T.S. 150. 2 Appellant's memorandum, p. 14. 3 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 74. 5 Appellant's record, p. 15-20. 6 Appellant's memorandum, p. 12. 7 Exhibits P-3, P-5, P-6, RPD record, pages 108-113. 8 Appellant's memorandum, paragraph 1. 9 BOC Form, question 9(a), 9(b), RPD Record, p. 26. 10 Practice Notice - Allegations against Former Counsel: https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/allegations-former-counsel.aspx 11 Appellant's memorandum, paragraph 5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-10577 RAD.25.02 (April 4, 2019) Disponible en français 6 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 (April 4, 2019) Disponible en français