MB8-03762

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 File No. / No de dossier de la SAR : MB8-03762 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of Decision November 1, 2018 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person(s) who is(are) the subject(s) of the appeal Me Angelica Pantiru Conseil(s) (de la/des) personne(s) en cause Designated Representative N/A Représentant(e) désigné Counsel for the Minister N/A Conseil du ministre Revised REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX, the appellant, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rendered on November 23, 2017. DETERMINATION OF THE APPEAL [2] The RAD dismisses the appeal and confirms the determination of the RPD, namely, that the appellant is excluded under Article 1E of the Convention on the Status of Refugees (the Convention). OVERVIEW AND FACTUAL BACKGROUND OF THE APPEAL [3] The appellant alleges: - having fled Haiti on XXXX XXXX, 2010, following threats received from third parties who appropriated the family land; - having settled in Brazil, where he had permanent residence from XXXX XXXX, 2011, up to his departure on XXXX XXXX, 2016; - having then gone to the United States, where he was denied asylum and where he stayed until he arrived in Canada on XXXX XXXX, 2017. [4] The RPD rejected the refugee protection claim, concluding that - the appellant demonstrated in his testimony and his Basis of Claim Form (BOC Form) that he had permanent residence in Brazil and enjoyed the same rights and obligations as citizens of that country, so he would therefore be a person referred to in Article 1E of the Convention and would not be a Convention refugee or a person in need of protection pursuant to section 98 of the IRPA; - the appellant did not discharge the burden of establishing that, if he were to return to Brazil, he would face cumulative discrimination that would amount to persecution; [5] The appellant appealed against that decision, alleging that the RPD: - applied the exclusion criterion unreasonably because the claimant does not enjoy certain rights that Brazilian citizens have; - made an unreasonable analysis of the issue of cumulative discrimination, of which the claimant was a victim in Brazil and which would amount to persecution; - failed to analyze the record under subsection 97(1) of the IRPA, that is, to verify whether the claimant is a person in need of protection in Haiti. ROLE OF THE RAD [6] The RAD reviews RPD decisions after carrying out its own analysis of the record by applying the correctness standard of review. The exception to this rule concerns situations where the RPD enjoys a meaningful advantage in assessing the credibility or weight to be given to the oral evidence it hears, in which case the RAD may apply the reasonableness standard,1 modified to apply to the RAD context. [7] I will apply the correctness standard while carrying out an independent analysis of all the evidence on the record and listening to the audio recording of the hearing. ANALYSIS [8] The determinative issue is the appellant's exclusion under Article 1E of the Convention. a. The appellant's status in Brazil [9] The appellant fled Haiti on XXXX XXXX XXXX 2010, and indicates that he settled in Brazil on XXXX XXXX, 2011. Section 12 of form IMM5669 indicates that he stayed there until XXXX 2016. [10] When questioned about his status in Brazil, the appellant stated that he: - had obtained permanent residence there in 2012 and had worked during most of that period until he left the country on XXXX XXXX, 2016, in accordance with section 8 of form IMM5669; - had a document attesting to that status in Brazil, of which: a. the original was allegedly lost during the crossing to Honduras; b. the copy, left with an acquaintance in Brazil, is allegedly lost or unobtainable; - still has permanent resident status in Brazil; [11] The appellant alleges that the RPD erred in determining that he still had permanent resident status at the time of the hearing without asking him questions in order to determine whether his status was substantially similar to that of citizens of that country. [12] To render its decision, the RPD relied on a Response to Information Request in the National Documentation Package on Brazil (March 31, 2017), Tab 3.4: Response to Information Request BRA 105515.FE, dated May 25, 2016. [13] That package was disclosed in evidence and its contents constitute a public document. When questioned about his status in Brazil, the appellant's explanations did not suggest that the authorization he had was different from that given to others. He testified that his status had allowed him to work, which he had done for several years, and he confirmed that it was still valid. The facts related by the appellant were consistent with the actions of a person with permanent resident status. [14] Thus, the RPD was correct to rely on the information in Tab 3.4 of the National Documentation Package on Brazil (March 31, 2017) as well as on the appellant's testimony about his activities to conclude that he has said status and that it is consistent with that of a permanent resident, without the need to analyze it further. [15] As the RPD found that there was prima facie evidence that the appellant was a permanent resident in Brazil, the burden of proof was then reversed and the onus was on the appellant to demonstrate that, at the time of the hearing before the RPD, he could not effectively benefit from the rights conferred on him by his permanent residence in Brazil.2 [16] The appellant submits that his status in Brazil is not the same as that of a citizen because it is conditional on his residing in Brazil and not being absent for more than two years. On the other hand, he also submits that he cannot renew his expired residence card, since he does not satisfy the renewal criteria, that is, his presence outside of the country is not a reason included in the law. [17] Yet, it is wrong to consider that the fact of having to comply with certain requirements in order to maintain permanent residence necessarily confers on him a conditional status allowing him to be excluded from the application of Article 1E of the Convention. [18] Being granted permanent status requires effort to keep it in force. As long as it is, the resident shows a continuing interest in residing permanently in the host country. Leaving the country for longer than a prescribed period without a legally recognized reason results in the forfeiture of the right that was granted. [19] However, having enjoyed permanent resident status for a period of five years, with the possibility of renewal, the appellant's status remained valid, and if it was impossible for him to renew it because he was outside the country, it follows that it is by his own actions that the appellant jeopardized the retention of his status. [20] The appellant argues that the exhibits submitted into evidence demonstrate that he did not have the same rights as citizens. The exhibits submitted, P-2 to P-9, mention isolated cases of violence and report on events, some of which concern both Brazilians and Haitians. They cannot justify how the appellant did not benefit from rights similar to those granted to nationals. [21] The appellant's testimony and the documentary evidence show that the rights attached to his residence status in Brazil allowed him to enter the country freely, to study there, to work there, and to access social services. [22] The RPD's finding that, on a balance of probabilities, the claimant essentially had a status substantially similar to that of Brazilian nationals is correct and, therefore, it was also correct in its finding that he is excluded under Article 1E of the Convention. b. Fear in Brazil [23] As for why he left Brazil, the appellant testified that he witnessed Haitians experiencing discrimination, violence and humiliation, and that they were accused of being the cause of the shortage of work. [24] Questioned as to whether he encountered difficulties related to work or the climate to which he alluded, he first indicated that he had stopped working for six months and that it was starting with the seventh month of unemployment that he had decided to leave. [25] Contradicting that statement, section 4 of his form IMM5669 indicates that he was working continuously from XXXX 2011 to XXXX 2016. For his part, the appellant testified that he had stopped working for a period of six weeks, which prompted him to leave for the United States. [26] Questioned as to how he could calculate six weeks of unemployment when his form IMM5669 indicates that he stopped working in XXXX 2016 and left on XXXX XXXX, 2016, he blamed those who completed the form for failing to ask him for that clarification. [27] One of the appellant's arguments is that he is the target of discrimination, the concrete example of which would be his difficulty in finding work in Brazil. [28] He stated at the beginning of the hearing that the facts and dates indicated in his BOC Form and in his form IMM5669 were complete and true, the same affirmation made by signing at the end of his documents. [29] While he blamed the contradictions on the volunteers who had helped him fill them out, he also stated that they spoke Creole and that he understood them very well. It seems unlikely that those contradictions could be explained as simply as by the error of third parties who wrote down the information provided by the appellant. [30] Thus, it appears that the appellant is not credible in his allegations that he encountered difficulties such as those he has put forward. [31] Moreover, he indicates that he had been well received and that he had never had any problems or experienced any violence whatsoever. [32] Although he might have witnessed acts of violence, the evidence indicates a climate in Brazil that is not specific to the appellant. [33] In closing, the appellant submits that the RPD failed to analyze his refugee protection claim against Haiti under subsection 97(1) of the IRPA. [34] Since the RPD decision to exclude the appellant under Article 1E of the Convention was correct, it was also correct not to proceed with an analysis of the situation in Haiti under subsection 97(1) of the IRPA. CONCLUSION [35] The RAD dismisses the appeal and confirms the determination of the RPD, namely, that the appellant cannot be a refugee or a person in need of protection under section 98 because he is a person described in Article 1E of the Convention. Richard Sheitoyan Me Richard Sheitoyan November 1, 2018 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93 and X (Re), 2017 CanLII 33034 (CA IRB). 2 Dieng v. Canada (Minister of Citizenship and Immigration), No. IMM-5092-12, de Montigny, April 30, 2013; 2013 FC 450, paragraphs 21, 22 and 23. Mai v. Canada (Minister of Citizenship and Immigration), No. IMM-1155-09, Lemieux, February 22, 2010; 2010 FC 192, paragraphs 35 and 36. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-03762 RAD.25.02 (April 18, 2018) Disponible en français 7 RAD.25.02 (September 18, 2018) Disponible en français