MB8-22886

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. / N° de dossier de la SAR : MB8-22886 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 at Montréal, Quebec Appel instruit à Date of decision July 15, 2019 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Me Jeffrey Platt Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION I. INTRODUCTION [1] XXXX XXXX (the Appellant), a citizen of Haiti, appeals a decision of the Refugee Protection Division (RPD) rendered on September 21, 2018, denying his claim for refugee protection. The Appellant submits that the RPD erred in determining that he is excluded from refugee protection by virtue of s. 98 of the Immigration and Refugee Protection Act (IRPA) and Article 1E of the United Nations Convention Relating to the Status of Refugees1 on the basis that he was a permanent resident (PR) of Brazil who does not face a prospective risk if he returns to that country. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that he is a Convention refugee or a person in need of protection. II. DETERMINATION [2] I confirm the determination of the RPD, finding that the Appellant is excluded from refugee protection pursuant to s. 98 of IRPA and Article 1E of the Refugee Convention. The appeal is denied. III. BACKGROUND [3] According to his Basis of Claim (BOC), the Appellant was involved in politics in Haiti. In 2010, he worked for the XXXX political party raising awareness for young people to vote for his party in the election of November 28, 2010, and March 20, 2011. [4] During the election, a candidate for the deputation named XXXX XXXX XXXX XXXX XXXX) sent a group of people to the polling station to cast ballots using fake identity cards. While the Appellant called the police, the group managed to flee before they arrived. [5] On XXXX XXXX, 2011, XXXX sent bandits to find the Appellant at the school where he studied. However, the Appellant was absent. The following day, the Appellant went to court to make a complaint against XXXX but the Judge was of no assistance. [6] Towards the end of XXXX 2013, XXXX sent bandits to the Appellant's home to kill him. While the Appellant was absent, they killed his older sister. Following this incident, the Appellant did not return to the district. [7] On XXXX XXXX, 2013, the Appellant fled Haiti and made his way to Brazil where he obtained PR status in 2014. [8] In 2016, the Appellant decided to leave Brazil as a result of the political and economic crisis that gripped the country. He reached the USA in XXXX 2016. [9] On XXXX XXXX, 2017, the Appellant arrived in Canada and signed his refugee claim June 1, 2017. [10] The Minister intervened in the case before the RPD, arguing that the Appellant is excluded from refugee protection on the basis that he is a PR of Brazil. [11] After considering the evidence, the RPD determined that the Minister established a prima facie case that the Appellant is excluded from refugee protection because he was a PR of Brazil at the time of the RPD hearing; PR status affords him substantially similar rights and obligations as nationals of that country; and he does not face a prospective risk if he returns to Brazil. The RPD found that the Appellant did not rebut the presumption that he is excluded from refugee protection. IV. DETERMINATIVE ISSUE [12] The Appellant submits the RPD erred in finding that the Appellant had PR status in Brazil at the time of the RPD hearing and does not face a prospective risk if he returns to Brazil. The Appellant also argues that the RPD erred by failing to analyze his claim against Haiti. V. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [13] The Appellant requests to submit the following document as new evidence on appeal: Item 1: Email of XXXX Contract (XXXX XXXX, 2018) with undated translation, en liasse.2 [14] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. If the new evidence meets the test for admissibility in ss. 110(4), then the RAD is required to further analyze the content of the document which requires an assessment of the credibility, relevance and newness of the evidence.3 [15] In the present case, the RPD hearing was June 18, 2018, and the RPD decision rejecting the claim is dated September 21, 2018. [16] A central issue before the RPD is the date that the Appellant left Brazil. While the Appellant testified that he left in XXXX 2016, he indicated in his refugee documents that he left in XXXX 2016. The date that the Appellant left Brazil is important since it is the point of reference when determining how long he was absent from the territory and whether he retained PR status in Brazil at the time of the RPD hearing. [17] During his testimony before the RPD, the Appellant requested to submit an email from a travel agency in Brazil allegedly establishing that he booked a flight and left Brazil in XXXX 2016. The RPD reviewed the document and determined that it was not admissible because the email was written in Portuguese and not translated into French or English; the email was an unsigned contract; and the document did not establish that the Appellant purchased a plane ticket, boarded a plane and left Brazil in XXXX 2016. [18] On appeal, Counsel requests to submit a French translation of this Portuguese email. While Counsel asserts that the French translation did not exist or was not reasonably available to the RPD at the time the rejection of the claim, there are no submissions to explain this statement. [19] The translation of the email is undated. On the face of it, it is unknown whether the document post-dates the rejection of the claim. [20] Following the RPD hearing, there was a further period of three months before the RPD decision to reject the claim. I note that the Appellant did not provide the translated email to the RPD as post-hearing evidence; a period of three months is a reasonable period for the Appellant to have submitted the translated email as post-hearing evidence; there is no explanation as to why the translation was not reasonably available prior to the rejection of the claim. [21] As such, I do not admit Item 1 as new evidence on appeal. VI. ORAL HEARING BEFORE THE RAD [22] The Appellant requests a hearing before the RAD. I have already determined that new evidence is not admissible on appeal. This, in itself, is a bar to an oral hearing before the RAD.4 VI. SCOPE OF THE RAD APPEAL [23] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.5 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.6 I have applied the correctness standard in the present case. VII. ANALYSIS [24] In certain circumstances, a person can be excluded from refugee protection.7 More specifically, through the operation of s. 98 of IRPA, Article 1E of the Refugee Convention excludes an individual from refugee protection when he 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.8 [25] In order to determine if the exclusion clause in Article 1E applies, the refugee claimant must have taken up residence in a country outside his nationality and be recognized as having substantially similar rights and obligations to that of a national in the third country.9 [26] In Majebi, the Federal Court of Appeal determined that the refugee claimant's status in the putative 1E country is determined at the time of the RPD hearing.10 [27] While PR status is for an indeterminate period in Brazil, it is generally lost if the person is absent from the territory for a period exceeding two years.11 [28] For the reasons that follow, I conclude that the RPD did not err in finding that the Appellant had PR status in Brazil at the time of the RPD hearing. Presumption of truthfulness of sworn testimony is rebutted [29] The Minister intervened in the case before the RPD, providing documentary evidence that the Appellant was granted PR status in Brazil in XXXX 2014 for humanitarian reasons.12 The Minister also submitted objective evidence that PR status granted the Appellant substantially similar rights as nationals of that country including the right to health and social services, education and the right to work.13 [30] Since the Appellant declared in his refugee documents that he lived and worked in Brazil until XXXX 2016, the Minister submitted that his absence from Brazil did not exceed two years. As such, the Minister submits that the Appellant is excluded from refugee protection on the basis that he had PR status in Brazil at the time of the RPD hearing June 18, 2018. [31] The Appellant concedes that he obtained PR status in Brazil in 2014. This being said, he submits that he left Brazil XXXX XXXX, 2016. Therefore, at the time of the RPD hearing June 18, 2018, he was absent from Brazil for a period exceeding two years and no longer had PR status in that country. [32] While the Appellant testified that he left Brazil in XXXX 2016, the Panel member challenged the Appellant to explain why his refugee documents indicate that he lived and worked in Brazil until XXXX 2016. According to the Appellant, his refugee documents indicate that he left Brazil in XXXX 2016 because Canadian immigration officials misunderstood his response to questions and he was not given a chance to re-read the completed immigration forms before signing them. [33] The RPD found the Appellant's explanation for this inconsistency is not satisfactory. The RPD noted that the Appellant testified that he was sufficiently proficient in the French language to understand and respond to questions found in his BOC. As such, it is reasonable to believe that the Appellant was able to comprehend and respond to questions in other immigration forms. The RPD also noted that the Appellant's response to questions in his immigration forms was compatible with the questions posed; he signed several declarations swearing that the information he gave is true, complete and exact; and he even initialled each page of his immigration forms. Finally, there is no reason to suggest that the immigration authorities did not act in good faith in the exercise of their duties. As such, the RPD rejected the Appellant's explanation for the inconsistency and on a balance of probabilities, retained from the evidence that the Appellant left Brazil in XXXX 2016. [34] On appeal, Counsel submits that the RPD erred by failing to apply the well-established principle set out in Maldonado14 that when a claimant swears that certain facts are true, this creates a presumption that they are true. It is argued that the Appellant clearly testified that he left Brazil in XXXX 2016 and this date should have been retained by the RPD. [35] This argument cannot succeed. While it is true that that there is a presumption that sworn evidence is true, the Federal Court of Appeal in Maldonado also held that this presumption is rebutted when there is valid reason to doubt their truthfulness. [36] In the present case, the RPD correctly noted a major inconsistency in the evidence regarding the date that the Appellant left Brazil. The RPD gave the Appellant every opportunity to explain the discrepancy. Ultimately, the Appellant's explanation that he did not understand French and was misunderstood by immigration officials who did not give him a chance to re-read his completed refugee forms, lacked credibility considering that he indicated in his BOC that he understood French; he responded to all questions in the refugee documents in a coherent manner; and he did not attempt to correct his refuge documents or signal any error at the outset of the RPD hearing even though he made other amendments at the beginning of the hearing. [37] This adverse credibility finding is sufficient to rebut the presumption that his sworn testimony is truthful. As such, the RPD did not err in preferring information contained in the Appellant's refugee documents that he lived and worked in Brazil until XXXX 2016. The RPD did not err by ruling that an email was inadmissible [38] As noted above, the Appellant mentioned during his testimony before the RPD that he had an email from a travel agency in Brazil showing that he purchased a plane ticket and left Brazil in XXXX 2016. [39] While Counsel did not file this document as an exhibit to the RPD, the Panel member nevertheless agreed to review it in order to see if it was admissible when it was brought to his attention by the Appellant during his testimony. [40] The RPD noted that the email is written in Portuguese with no translation in English or French. The Appellant could not explain why the document was not translated in conformity with the RPD Rules even though it was available for a long period of time prior to the RPD hearing. The RPD observed that the document appeared to be an unsigned contract. The RPD noted that the document itself does not establish that a plane ticket was actually purchased and used to leave Brazil. There is no actual copy of a plane ticket attached to the document. Finally, if the Appellant travelled by plane in XXXX 2016 during his journey from Brazil to the USA as alleged, it is unlikely that he would have needed until XXXX 2016 to reach the USA.15 Based on the identified concerns, the RPD ruled that the email was not admissible. [41] On appeal, Counsel submits that the RPD made a flagrant error by disregarding documentary evidence aimed at corroborating the claim. The Appellant provided an email of a contract (including a plane ticket) substantiating that he left Brazil in XXXX 2016. This email is crucial evidence proving that the Appellant left Brazil for a period exceeding two years and lost his PR status at the time of the RPD hearing. [42] I find this submission is both misleading and unfounded. [43] It is true that the Appellant mentioned that he had an email from a travel agency when he testified. This email did not form part of the RPD record and the Appellant's counsel did not produce it. Nevertheless, the RPD agreed to review the document on the day of the hearing to see if it was admissible. [44] For the following reasons, I find that the RPD did not err in refusing to admit the email. [45] First of all, the RPD Rules are unequivocal: any document used by a claimant must be in English or French or, if in another language, the document must be provided with an English or French translation with a declaration signed by the translator.16 In the present case, the RPD could not accept the email provided by the Appellant which was written in Portuguese and not translated. In my view, the failure to translate the document was sufficient grounds to refuse the admissibility of the email in the present case. [46] I note further that the failure to provide the proper translation is especially problematic considering that, according to the Appellant, the Portuguese email is a contract from a travel agency showing that he left Brazil in XXXX 2016. Considering that the RPD hearing only took place in XXXX 2018, I find that he also had ample time to obtain a translation of the document in conformity with the RPD Rules. [47] Additionally, my review of the email reveals that the RPD correctly noted that the Portuguese email is an unsigned contract with a travel agency. Contrary to Counsel's assertion, there is no plane ticket attached to the email itself; there is no evidence that a plane ticket was actually purchased or that the plane ticket was ever used. All things considered, I find that the RPD did not err in refusing to admit the unsigned and untranslated version of a Portuguese email from a travel agency provided on the day of the hearing. [48] In sum, I endorse the analysis of the RPD,17 finding that the Minister established a prima facie case that the Appellant lived and worked in Brazil until XXXX 2016 and that he was a PR of Brazil at the time of the RPD hearing. The Appellant did not rebut the presumption that he had PR status in Brazil. I also agree that PR status in Brazil accords the Appellant substantially similar rights as nationals of that country, and that he had the right to return to that country at the time of the RPD hearing. Prospective risk in Brazil [49] Next, the RPD considered whether the Appellant faces a prospective risk if he returns to Brazil. This is an important step in the analysis because if the Appellant is at risk in Brazil, he will not be excluded from refugee protection pursuant to Article 1E of the Refugee Convention. [50] The Appellant was questioned at the RPD hearing about his situation in Brazil where he lived from 2014 to 2016. He described having a stable address and being employed throughout the period that he spent in Brazil. [51] In his BOC, he states that he left Brazil as a result of the political and economic uncertainty that gripped the country in 2016. However, the Appellant added for the first time at the RPD hearing that in XXXX 2016, he was threatened and targeted by Brazilian bandits. He testified that this incident prompted him to flee Brazil eight days later. [52] When challenged to explain why he only mentioned that he fears returning to Haiti in his BOC and makes no mention of the incident involving the Brazilian bandits which allegedly acted as the catalyst for his departure from Brazil, the Appellant once again stated that he was not sufficiently proficient in the French language to understand and respond to the questions in his BOC. [53] The RPD found the Appellant's explanation for this major omission is unreasonable considering that he stated at the outset of the hearing that he was sufficiently proficient in French to understand and answer the questions in his BOC; he gave a sworn statement that all the information in his BOC is complete, true and accurate; he made other unrelated amendments to his BOC on the day of the hearing; and the Appellant was assisted by Counsel to complete his BOC. As such, the RPD concluded that the Appellant's testimony regarding the alleged incident involving Brazilian bandits was not believable. [54] The RPD also acknowledged in the decision that objective evidence corroborates that some Haitians may experience discrimination in Brazil and some have even been killed. However, the RPD found that this is insufficient to show that all Haitians face a serious possibility of persecution or cumulative discrimination equivalent to persecution everywhere in Brazil. [55] On appeal, Counsel concedes that the Appellant failed to mention his alleged problem with Brazilian bandits in his BOC. However, it is argued that this is understandable considering that he was focused on describing his fear in his country of nationality which is Haiti. Moreover, according to the Appellant, he lost his PR status in Brazil. As such, the omission is not fatal to his refugee claim. [56] I find this submission has no merit. [57] First of all, the BOC form is clear: refugee claimants are required to name all the countries in which they risk a grave prejudice. In the present case, the Appellant only mentioned his fear in Haiti.18 [58] Next, while the Appellant states that he did not mention his fear in Brazil given that he considered that he lost his PR status in that country, this statement is difficult to reconcile with the fact that he specifically mentions Brazil in his BOC narrative, noting his concerns about the political and economic insecurity that gripped the country in 2016.19 [59] The RPD did not err in reaching a negative inference from the Appellant's failure to mention a pivotal event in his BOC involving Brazilian bandits which allegedly acted as the catalyst for his decision to flee the country. [60] Other than his allegation that he was targeted by bandits in Brazil which was found to be lacking in credibility, the Appellant did not cite any other discriminatory concerns related to his treatment in Brazil where he enjoyed freedom of movement and had access to lodging and employment. [61] In sum, I find that the RPD did not err in finding that the Appellant failed to establish a prospective risk if he returns to his country of residence in Brazil. The RPD did not err by failing to address the Appellant's claim against Haiti [62] While Counsel submits that the RPD breached rules of procedural fairness and fundamental justice by failing to examine the Appellant's claim in Haiti, this submission is unfounded. [63] My review of the audio recording of the RPD hearing reveals that the RPD specifically canvassed the Appellant's situation in Haiti and the Appellant was given every opportunity to explain his fear. However, once it was determined that the Appellant does not face a prospective risk if he returns to Brazil, the RPD was not required to consider the Appellant`s refugee claim against Haiti. VIII. REMEDY [64] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a) of the IRPA, namely that XXXX XXXX is excluded from refugee protection pursuant to section 98 of the IRPA and Article 1E of the Refugee Convention. The Appellant is neither a Convention refugee nor a person in need of protection. Patricia O'Connor Me Patricia O'Connor July 15, 2019 Date 1 United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 [Refugee Convention]. 2 CVC Contract , Appeal Record, p 27. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 55. 4 Ss 110(3) and 110(6) of IRPA. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 78, 103. 6 Ibid, paras. 58, 59 and 70. 7 Section 98 of IRPA "A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection." 8 Refugee Convention, supra note 1. 9 Canada (Minister of Citizenship and Immigration v Zeng 2010 FCA 118. 10 Majebi v Canada (Minister of Citizenship and Immigration), 2016 FCA 274. 11 NDP for Haiti, 30 April 2018 Tab 3.12 Brazil and Haiti: Resident status of Haitian citizens in Brazil, including their rights and responsibilities (2010-September 2017) ZZZ105986, 3 October 2017 at 12. 12 Exhibit M-2, Brazil, 2014. Diario Oficial da Uniao (DOU) de 7 de Agosto de 2014, Section 1, page 204 with translation, www .jusbrasil.com.br/diarios/74141156/dou-secao-l-07-08-20 l 4-pg-204. 13 Exhibit M-3, Response to Information Request (RIR) BRA106054.FE Brazil: Whether a permanent resident automatically loses permanent resident status if outside the country for more than two years; recourse available to contest cancellation of permanent resident status (2017-March 2018). 14 Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A). 15 The Appellant applied for admission to the USA from Mexico August 11, 2016, Notice to Appeal, Removal Proceedings , Department of Homeland Security, RPD record p. 77. 16 RPD Rule 32(1). 17 Teckle v Canada (Citizenship and Immigration) FC 1040, paras 24-26. 18 BOC, Question 3. 19 BOC narrative, RPD record p 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB8-22886 13