MB8-21582

RAD File No. / No de dossier de la SAR : MB8-21582 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 25, 2019 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person who is the subject of the appeal Me Cristian Roa-Riveros 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 OVERVIEW [1] XXXX XXXX is a citizen of Haiti who left his country in XXXX 2016 after receiving death threats and being attacked by members of the PHTK party for his involvement in the Pitit Dessalines political party. Since he lived in Brazil from XXXX 2011 to XXXX 2013, his name was allegedly on a list of 43,781 Haitians who were reportedly allowed to apply for permanent residence in November 2015. [2] Mr. XXXX allegedly left Haiti and went through five countries to travel to the United States, where he filed an asylum application in XXXX 2016. He remained in the United States until XXXX 2017, when he came to Canada. [3] The Refugee Protection Division (RPD) determined that Mr. XXXX was excluded under Article 1E of the United Nations Convention Relating to the Status of Refugees (the Convention) and that he was not a Convention refugee or a person in need of protection under section 98 of the Immigration and Refugee Protection Act (IRPA). The RPD concluded that, at the time of the hearing, although Mr. XXXX had become a permanent resident of Brazil, he had lost his status when he returned to Haiti because he was outside Brazil for more than two years. [4] To determine whether Mr. XXXX should be excluded, the RPD analyzed the factors in Zeng.1 [5] Mr. XXXX appealed from the RPD's decision on September 13, 2018, alleging that the RPD erred given the following: - Mr. XXXX was not a permanent resident of Brazil because he left for more than two years. - He left because he faced a serious possibility of persecution as a result of his profile as a black person and a Haitian. - The criteria in Zeng were erroneously applied to the risk in Haiti, despite the fact that the risk occurred a number of years after he left Brazil. - The RPD analyzed all parts of the claim under section 98 of the IRPA. DETERMINATION OF THE APPEAL [6] Pursuant to paragraph 111(1)(a) of the IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD for other reasons, namely, that XXXX XXXX is not subject to Article 1E of the Convention. Neither is he a Convention refugee or a person in need of protection. ROLE OF THE REFUGEE APPEAL DIVISION [7] The RAD reviews RPD decisions after carrying out its own analysis of the record by applying the correctness standard of review.2 The exception to this rule is where the RPD enjoys a meaningful advantage, and the RAD can then defer to the RPD's findings.3 [8] I will apply the correctness standard as I conduct an independent analysis of the record, which includes examining all the evidence and listening to the recording. ANALYSIS [9] The determinative issues are the exclusion and credibility. Exclusion as a result of his status in Brazil [10] Mr. XXXX allegedly lived in Brazil from XXXX 2011 to XXXX 2013, and he and his spouse were permanent residents. At the time, he left Haiti to look for work and not to escape persecution, a risk to his life or a risk of cruel and unusual treatment. After spending over two years outside Brazil, he lost his permanent resident status. Zeng [11] The review of an exclusion under Article 1E of the Convention requires a review of the criteria set out in Zeng. [12] The first step consists of determining whether, on the date of the hearing, Mr. XXXX status in Brazil was substantially similar to that of Brazilian nationals. However, since he left Brazil for a period of more than two years, he allegedly lost his status. Therefore, on the date of the hearing, Mr. XXXX status was not substantially similar to that of Brazilian nationals. [13] Mr. XXXX previous status was substantially similar to that of Brazilian nationals, but he lost the status. As a result, a review should be conducted of the voluntary or involuntary nature of the loss, the possibility of returning to Brazil, the risk that he would face in his country of origin, Canada's international obligations and all the other relevant facts. Reason for the loss of his status [14] The RPD determined that Mr. XXXX fear did not justify the voluntary relinquishment of his status in Brazil considering the many contradictions and omissions in his Basis of Claim Form (BOC Form) concerning Brazil. The RPD determined that the relinquishment of the status was voluntary. [15] Mr. XXXX justified his decision to leave Brazil and travel to Haiti by referring to his alleged experiences, including the murder of a roommate in connection with an extramarital relationship and an environment of persecution against Haitians and black people. [16] Mr. XXXX had a similar status to that of Brazilian nationals, and he allegedly returned to Haiti to escape the mistreatment that he reportedly suffered. Regardless of the situation in Brazil, Mr. XXXX left with the intention of returning to his own country where, at that time, he did not have any fears. He did not consider the rights and benefits of his status in Brazil when he chose to return to Haiti to continue going about his business. [17] Mr. XXXX left Brazil of his own free will and let his status lapse, and Zeng shows that the voluntary or involuntary loss of status is one of a number of factors that must be balanced. [18] Before being considered voluntary, an action leading to the loss of a status granting rights substantially similar to those of a country's nationals requires a review beyond the action itself. A voluntary act to escape a dangerous situation leading to the loss of status will be considered a justified voluntary relinquishment that does not lead to an exclusion. However, the relinquishment may also result from the uncertainties of life. When the relinquished status is expected to be useful in the foreseeable future, then an exclusion is more likely to apply. This would be the case, for example, for people who relinquish their status and end up in a situation with a precarious status. However, the relinquishment of a status whose usefulness in the foreseeable future could not have been expected should not lead to an exclusion. In each case mentioned above, the relinquishment is voluntary without necessarily leading to the same effects. [19] Mr. XXXX states that he relinquished his status because he faced a risk of persecution or harm in Brazil. While this justification is usually acceptable, the RPD did not find his explanation credible, given his omissions and contradictions at the hearing. Since the RPD did not believe the allegations regarding Brazil, it concluded that he voluntarily relinquished his status, which ultimately led to his exclusion. I consider that the conclusion regarding a voluntary relinquishment of status leading to his exclusion is erroneous. [20] Mr. XXXX allegations regarding Brazil to justify his return to Haiti are illogical. Regardless of the RPD's finding regarding the credibility of his fear in Brazil, this type of review should not have taken place. [21] By returning to Haiti, Mr. XXXX did not consider that, in the near future, he would face a risk of persecution or harm requiring him to rely on the status that he had enjoyed and had relinquished in Brazil. He relinquished his Brazilian status because he was of the opinion that he did not need it. The exclusion was not a possible outcome. [22] Mr. XXXX spent two years in Haiti without experiencing any issues. [23] To consider the loss of status as voluntary or involuntary under Zeng and the application of section E, the reason, including the foreseeability of having to use the relinquished status, must be analyzed. If the review focuses on the voluntary aspect of the loss, there is a risk that all people who have a status with rights substantially similar to those of nationals will be obliged to maintain the status because it provides a solution in the event of a possible, even unforeseeable, need to use it. The failure to do so would lead to a conclusion of a voluntary relinquishment of the status without regard for the circumstances giving rise to the relinquishment, which may not be related to persecution or threats of harm. [24] Regardless of his allegations regarding Brazil, I consider that, by leaving Brazil for two years without returning, Mr. XXXX voluntarily relinquished his status. However, at that time, relinquishing his status did not lead to foreseeable consequences for him that could have required him to use it. According to Zeng, by applying the voluntary aspect of the relinquishment or loss of a status in terms of Article 1E of the Convention, a distinction must be drawn where the reason for relinquishing the status stems from the fact that the status is currently useless and the lack of foreseeable circumstances that would justify its use in the foreseeable future. The RPD concluded that Mr. XXXX voluntary relinquished his status in Brazil because it did not believe the alleged reasons for his persecution in Brazil. The RPD considered that the voluntary relinquishment of the status led to the exclusion. However, regardless of the allegation concerning Brazil, the voluntary relinquishment of the status stems from the foreseeable absence of its need and does not lead to the application of the exclusion. Possibility of regaining the status in Brazil [25] The RPD argued that Mr. XXXX could use administrative recourse to regain his permanent resident status in Brazil. The RPD referred to Law No. 13,445 of 2017 stating that family reunification would be allowed, given his spouse's status in Brazil. [26] The information in the response to information request number ZZZ106127.FE indicates the conditions for obtaining this type of authorization.4 The information states that the authorization is not automatic and is conditional. It cannot be considered that Mr. XXXX has a right of return. [27] I therefore consider that there is no need to continue analyzing the exclusion under Article 1E of the Convention because the exclusion does not apply. Credibility [28] The RPD referred to many contradictions and omissions that led it to draw negative inferences regarding Mr. XXXX credibility. Failure to include his membership in a political organization [29] First, his issues allegedly stem from his involvement in a political party. He allegedly failed to include this involvement in section 9 of his BOC Form. When asked about this omission, he stated that he did not understand the word "organization," because for him, it was a party. [30] The RPD confronted him again by drawing his attention to question 3A of his American asylum application form. The form also includes the word "organization," and he stated that he was a member of the Pitit Dessalines party. When asked why, in one case, he understood the word, but not in the second case, he kept stating that the issue concerned his understanding of the word. However, the explanation regarding his understanding of the same word at two different times is illogical and it undermines his credibility, especially since he had counsel to help him complete his forms. I consider that the RPD made the correct finding about Mr. XXXX credibility as a result of this observation. Error regarding the date of the attack [31] The American form states that the attack occurred on January 10, 2016. His account states that the attack occurred on January 3, 2016. When asked about the contradiction, Mr. XXXX blamed his American counsel who allegedly did not pay attention. Since he did not understand English, he allegedly saw the date and believed that it was his departure date. The RPD believed that his failure to pay attention to a key date in his account undermined his credibility. I share this view, which I believe to be correct. Statement from his uncle [32] Mr. XXXX testified that he was beaten on January 3, 2016, by individuals who came to his home. He allegedly had head and lower body injuries, specifically injuries to his right leg. He provided a statement from his uncle, who attested to some of the facts that he recounted himself. However, the letter erroneously stated that his two feet were injured and that his stay was four days instead of three, as he had testified. [33] Regarding the errors, Mr. XXXX explained that his elderly uncle misunderstood what he was asked to do and took it upon himself to write his own statement. When asked how his uncle could have written a document in a language that he does not speak, Mr. XXXX stated that he assumed that his uncle had used the Internet for translation purposes. The written statement of an elderly uncle who does not speak French and who used computer translation is, at the very least, uncommon. In addition, by referring to his uncle's incomprehension to explain factual errors that he would have been able to identify, he shows a lack of credibility. [34] The RPD's conclusion regarding the lack of probative value of the uncle's document is correct. The content errors and the explanations regarding the preparation of the document further undermine Mr. XXXX credibility. Departure from Haiti and route [35] After leaving Haiti on XXXX XXXX XXXX 2016, with the help of his cousin's contacts, he allegedly went through five countries. Since he lost his passport along the way, somewhere in Costa Rica, the RPD asked him how he could have crossed all the borders without any acceptable proof of identity. Mr. XXXX stated that he claimed to be African and that he could therefore continue travelling. [36] This type of absurd explanation is highly improbable. Mr. XXXX claim that he was able to cross many borders using just this one imagined ploy seriously undermines his testimony. [37] Regardless of the RPD's erroneous application of section 98, the contradictions, omissions and implausibilities identified in its decision are significant enough to show that Mr. XXXX claim lacks credibility. [38] I consider that Mr. XXXX is not subject to exclusion clause 1E of the Convention and that section 98 of the IRPA is not applicable. [39] I also consider that the RPD correctly identified the credibility issues to conclude that Mr. XXXX would not face a serious possibility of persecution or, on a balance of probabilities, a risk to his life or a risk of cruel and unusual treatment or punishment should he return to Haiti. CONCLUSION [40] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD for other reasons, namely, that XXXX XXXX is not subject to Article 1E of the Convention. Neither is he a Convention refugee or a person in need of protection pursuant to paragraph 111(1)(a) of the IRPA. (signed) Richard Sheitoyan Me Richard Sheitoyan September 25, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Zeng, [2011] 4 FCR 3, 2010 FCA 118 (CanLII). 2 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 3 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 National Documentation Package (NDP) on Haiti, July 20, 2018, Tab 14.11, information request number ZZZ106127.FE entitled Brazil and Haiti: Situation of Haitians in Brazil, including rights and obligations; permanent resident status; documents issued to Haitians, including Foreigner Identity Cards (Cédula de Identidade de Estrangeiro, CIE); treatment of Haitians in Brazil, including access to employment and education, state protection and support services (2010-June 2018). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-21582 RAD.25.02 (April 4, 2019) Disponible en français 9 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