MB8-13077

RAD File No. / No de dossier de la SAR : MB8-13077 MB8-13078 / MB8-13079 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 25, 2019 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Luciano Mascaro Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX, and her husband, XXXX XXXX, are citizens of Haiti. They allege that they are afraid to return to Haiti because Mr. XXXX was attacked and his business was broken into. They left Haiti for Brazil, where they were granted permanent resident status. Their daughter, XXXX XXXX XXXX, was born in Brazil and is a citizen of that country. [2] The Minister intervened in the appellant's hearing before the Refugee Protection Division (RPD). He alleges that the appellants have status in Brazil that is similar to that of citizens of that country. For that reason, they should be excluded from protection under the Convention.1 [3] The RPD rejected the adult appellants' refugee protection claim because they have permanent resident status in Brazil. According to the RPD, their permanent resident status gives them rights that are similar to those of Brazilian citizens. The RPD determined that they would not be subjected to a serious possibility of persecution or a risk in Brazil. Accordingly, the RPD did not assess the appellants' fear with respect to Haiti. The RPD determined that the child, who is a Brazilian citizen, would not be subjected to a serious possibility of persecution or a risk in her country of nationality. [4] The appellants are not challenging the fact that they have a status in Brazil that, in theory, gives them rights that are similar to those of Brazilian citizens. They argue that Brazil is not a safe country for them and that the RPD improperly assessed the possibility of persecution by reason of their race and their Haitian nationality. More specifically, they submit that the RPD improperly assessed the evidence on the situation of Haitians in Brazil and that its credibility findings are wrong. [5] The appellants are not presenting any new evidence on appeal and are not requesting a hearing. DETERMINATION [6] I dismiss the appeal. The appellants are not credible in relation to the incidents they experienced in Brazil. The evidence does not establish that the discrimination against Haitians in Brazil amounts to persecution and that state protection is unavailable. The appellants are therefore excluded from the application of the Convention2 and are neither Convention refugees nor persons in need of protection within the meaning of the Act. ANALYSIS Role of the Refugee Appeal Division [7] When reviewing the RPD's decision, I must conduct an independent analysis of the entire record, in light of the appellant's arguments, and determine whether the RPD made errors in its decision.3 Credibility of the allegations against Brazil [8] The appellants submit that the RPD improperly assessed their fear should they return to Brazil because, even though they have status there, it is not a safe country. I conclude that the RPD did not err by finding that the appellants lack credibility with respect to the incidents they allegedly experienced in Brazil. [9] The appellants described three incidents during which they were attacked or threatened by Brazilians. None of these incidents was mentioned in their refugee protection claim forms. The appellants argue that the omission can be explained by the fact that their refugee protection claim is primarily based on their situation in Haiti. During the hearing, however, they stated that they did mention these events because they could not provide supporting evidence for them. Confronted with the fact that their testimony constitutes evidence, they repeated the same explanation. [10] I find that the explanation provided on appeal contradicts the one given during the hearing, which further undermines the appellants' credibility. Furthermore, although their claim is based on Haiti, their written account nonetheless includes a paragraph on the living conditions in Brazil. There is still no explanation as to why their written account describes the overall living conditions in Brazil but does not mention the incidents that they personally experienced. [11] I conclude that the appellants tried to exaggerate the problems they had in Brazil, which undermines their credibility. Prospective risk in Brazil and state protection [12] The appellants argue that they do not need to demonstrate that they were personally targeted by acts of persecution in the past for their refugee protection claim to be allowed. They can demonstrate that they face a serious possibility of persecution should they return, or a prospective risk. They are correct on this point, but they must also demonstrate that the Brazilian state is unable to protect them. [13] They submitted documentation that gives examples of Haitians who have been killed in Brazil or who live in inhumane conditions.4 The evidence that was before the RPD at the time of the hearing shows that Brazil has a very high rate of violent incidents5 and that acts of discrimination or racism frequently occur.6 [14] According to the case law, persecution is a "sustained or systematic violation of basic human rights demonstrative of a failure of state protection."7 According to the appellants' testimony, they had housing and jobs in Brazil. The documentary evidence establishes that Brazil has a legal framework to fight discrimination.8 The appellants never filed a complaint or sought assistance from the government in relation to the incidents of discrimination that they allegedly experienced. [15] With respect to the incidents of crime of which the appellants provided examples, they did not provide any evidence to rebut the presumption of state protection. They stated that the police refuse to help Haitians, but there is no evidence supporting that statement. [16] Therefore, the appellants did not demonstrate that the discrimination to which they would be subjected in Brazil amounts to persecution and that the state would not protect them from criminal acts and discrimination. [17] Consequently, the RPD correctly concluded that the two adult appellants are excluded from the application of the Convention.9 Minor child [18] Because the appellants' child is a Brazilian citizen, the exclusion does not apply to her and her refugee protection claim must be examined in relation to Brazil. Although the notice of decision indicates that she is excluded, the RPD made this distinction in its decision, and its conclusion is correct. However, the child is alleging the same possibility of persecution and risks as her parents. The appellants did not present evidence that the child faces a serious possibility of persecution and that she would not receive state protection. I determine that the minor appellant is not a refugee because she did not demonstrate a serious possibility of persecution in her country of nationality, Brazil. Nor did she allege a risk to her life or a risk of cruel and unusual treatment or punishment. CONCLUSION [19] The RAD confirms that XXXX XXXX and her husband, XXXX XXXX, are excluded from the application of the Convention10 by reason of their status as permanent residents of Brazil. [20] The minor appellant, XXXX XXXX XXXX, does not have a well-founded fear of persecution in Brazil, nor would she be subjected to a risk to her life or a risk of cruel and unusual treatment or punishment. [21] I confirm the determination of the RPD, that is, that the appellants are not Convention refugees or persons in need of protection. [22] The appeal is dismissed. Zofia Przybytkowski Me Zofia Przybytkowski February 25, 2019 Date IRB translation Original language: French 1 Article 1E of the Convention; section 98 of the Immigration and Refugee Protection Act (IRPA). 2 Article 1E of the Convention. 3 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 4 Refugee Protection Division record, pp. 145 to 154. 5 National Documentation Package (NDP) on Brazil, January 31, 2018, Tab 7.2, Brazil: Crime situation, including organized crime; police and state response, including effectiveness; state protection for witnesses and victims of crime (2009-October 2012). 6 NDP on Brazil, January 31, 2018, Tab 2.1, Brazil. Country Reports on Human Rights Practices for 2016. 7 Ranjba v. Canada (Minister of Citizenship and Immigration) 2003 FCTD 637 (CanLII), 2003 FC 637; Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (C.A.). 8 NDP on Brazil, March 31, 2017, Tab 2.1, Brazil. Country Reports on Human Rights Practices for 2016. 9 Article 1E of the Convention. 10 Article 1E of the Convention, section 98 of the IRPA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-13077 MB8-13078 / MB8-13079 RAD.25.02 (September 18, 2018) Available in English 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 (September 18, 2018) Disponible en français