MB9-08959

RAD File / Dossier de la SAR : MB9-08959 MB9-08960 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision February 13, 2020 Date de la décision Panel Me Agnès Connat Tribunal Counsel for the persons who are the subject of the appeal François Jean Denis Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (male appellant) and his spouseXXXX XXXX XXXX (female appellant), are citizens of Haiti. [2] The male appellant fears for his life because of criminals who illegally took possession of family land in 2017. The male appellant stayed in Brazil until 2012 and the female appellant until 2014. They left Brazil together for the United States on XXXX XXXX XXXX 2016, before coming to Canada on XXXX XXXX XXXX 2017. [3] The Refugee Appeal Division (RAD) confirms the Refugee Protection Division's (RPD's) determination that XXXX XXXX is excluded under Article 1E of the Convention and cannot be a Convention refugee or a person in need of protection. [4] The RAD confirms the RPD's determination for other reasons. XXXX XXXX is not excluded under Article 1E and is not a Convention refugee or a person in need of protection. [5] The appeal is dismissed. Appeal of the Refugee Protection Division decision [6] The Minister intervened in writing to request that the adult appellants be excluded by reason of their permanent residence in Brazil. [7] After analyzing the criteria in Zeng[HL1],1 the RPD concluded that the appellants were excluded from Canada's protection under Article 1E of the Convention. For the RPD, the appellants were able to obtain permanent residence in Brazil, which would have given them substantially similar rights to those of the country's nationals. Having lost that possibility voluntarily, after an absence of more than two years, they cannot return there and failed to establish that there is a prospective fear in Haiti or a reasonable fear of persecution or a risk of harm under subsection 97(1) of the Immigration and Refugee Protection Act (IRPA) in Brazil. Arguments filed by the appellants [8] The appellants argue that the RPD lacked rigour in the assessment of their credibility, used a selective approach and that the analysis conducted of their claim was not in depth. They are of the opinion that the RPD carried out a microscopic analysis of the evidence by focusing on details rather than on the substance of the evidence, which resulted in its misinterpretation thereof. They raise a breach of the principle of natural justice. Determinative issues that the Refugee Appeal Division must respond to [9] Did the appellants credibly demonstrate that should they return to Haiti, they would be subjected to a risk to their lives or to a risk of cruel and unusual treatment? [10] Are the appellants excluded from Canada's protection pursuant to Article 1E of the Convention? Role of the Refugee Appeal Division in this appeal [11] To determine whether the RPD decision contains errors, the RAD conducted an independent analysis of the evidence, including that from the hearing, and applied the correctness standard. ANALYSIS The appellants failed to establish any risk of harm should they return to Haiti [12] The appellants submit that the RPD pretended to analyze the appellants' situation in Haiti, that it devoted three paragraphs in its decision to the reasons why the appelants did not return to Haiti before the problems started, when this was irrelevant, and that it focused on the secondary aspects of the claim. They criticize the RPD for questioning the merits of their claim with the pretext that they were not in Haiti when the threats occurred and that the alleged fear is merely hypothetical. [13] On a balance of probabilities, the RPD concluded that the appellants failed to establish their allegations with respect to Haiti. It drew a negative inference as to the appellants' credibility because they gave no explanation for their decision not to return to Haiti after their departure from Brazil. The RPD is of the opinion that as they were not in Haiti when the problems started, the appellants' fear is merely hypothetical. The RPD drew a negative inference because the appellants did not submit a deed for the land that belonged to the male appellant's mother. [14] The RPD's conclusion is correct. The appellants failed to establish on a balance of probabilities that they would be subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment if they returned to Haiti. [15] The female claimant's allegations are based entirely on those of the male appellant. In his Basis of Claim Form (BOC Form), the male appellant contends that his mother is the owner of a XXXX XXXX XXXX XXXX that criminals seized on May 19, 2017, and that the situation has been difficult since August 2017. Following this seizure, the family allegedly filed a complaint and the police apparently attempted unsuccessfully to recover the land, and the criminals reportedly attempted to murder the male appellant's parents, who went into hiding. In his amended BOC Form, the male appellant adds that his siblings left for Chile and that the criminals allegedly returned in December 2017 to kill the family. A neighbour, Mr. XXXX, reportedly informed them in August 2018 that the criminals regularly scoured the neighbourhood looking for them. [16] The alleged events took place in May 2017, when the appellants were in the United States for more than a year. The RPD rightly questioned the appellants as to the reasons why they did not return to Haiti or Brazil in 2016, when on that date, there was no risk. In addition to the contradiction raised by the RPD, which I agree with, I noted that when the RPD asked him when he decided to come to Canada, the male appellant stated in XXXX 2017, that is, before the events. The female appellant then stated that they decided to claim refugee protection in Canada instead of the United States because the expiry date to apply for asylum had already passed. Later at the hearing, the male appellant stated that he learned that there were problems in Haiti on May 8, 2016, and the female appellant corrected him, stating that it was instead in May 2017. The RPD's conclusion is correct. The appellants' lack of an answer undermined their credibility. [17] When asked about what they, the criminals whom he had never met before because he had left in 2012, could want from him, the male appellant explained that they might think that he intended to seek recourse against the loss of his mother's land. This explanation is hypothetical and not credible. None of the family members has returned to the land since December 2017, as the family has apparently left the country. Furthermore, neither the male appellant, nor his family, nor the female appellant has taken any steps to recover the property. Nor have they demonstrated their intention to do so. [18] The appellants testified that they did not know the identity of the criminals but that they knew them. This explanation is not credible. The criminals had allegedly taken over the expensive parcel of family land in 2017, the police reportedly intervened but were unsuccessful in its recovery, and the male appellant was in regular contact with his family and his neighbours. Even though the appellants were unable to give the actual names of the criminals, they should at the very least be able to give a few details about this gang, who allegedly seized the family land. Haiti is a small country where word gets around. Rumour is institutionalized2 in Haiti and is particularly effective.3 If it can be used to find the victims, it can probably be used to identify the criminals. [19] The appellants did not submit any evidence of property deeds or of any police intervention. At the hearing, they explained that they received illegible documents through WhatsApp from the male appellant's brother, but did not submit anything before the RPD's reasons were drafted. Nor did they ask the RAD to allow documents as new evidence. This absence of corroborating evidence is not determinative in itself, but the absence of evidence does not substantiate the appellants' fear or offset the credibility issues. [20] The RPD erred in not ruling on the probative value of written statement by Mr. XXXX XXXX who was allegedly a neighbour of the family. His affidavit is drafted as follows: [translation] The purpose of this is to report that criminals come regularly to the area looking for XXXX family members. They give the names of all the family members and swear that they will kill them if they come to reclaim the land. The neighbours are very concerned by this situation and do not know where to turn. They call the police but their concerns go unanswered. They fear being the victims of the regular presence of the criminals who scour the neighbourhood looking for XXXX family members. [emphasis added] [21] I do not add any probative value to this letter. It does not have a date and cannot be used to draw a conclusion about the current risk. I do not know whether it was written in 2017, after the alleged events, or at the time of the hearing. The male appellant left the area in 2012 and was not there at the time of the alleged events in 2017. Mr. XXXX XXXX does not state that he knows the male appellant in his statement, nor whether he already lived in the area in 2012. When he writes [translation] "all the XXXX family members," there is nothing to indicate if he is referring to the male appellant, the female appellant or strictly the XXXX parents. [22] The above-cited inaccuracies in the male appellant's account undermine the credibility of the allegations of risks that his family would be subjected to in Haiti, and consequently, undermine the credibility of the risk of return. [23] The appellants failed to establish that they would be subjected to a serious possibility of persecution, on a balance of probabilities, that they would be subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment should they return to Haiti. Exclusion from Canada's protection [24] The Court of Appeal sets out the criterion to apply in the decision made under Article 1E: Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts (emphasis added). Appellants' status in Brazil [25] The appellants submit that they are not really permanent residents of Brazil and that they simply had the right to work, that the permanent residents did not have the right to return to Brazil if they left the country. They submitted that the RPD had taken up the fight for the Minister without conducting in-depth analysis of the case. [26] The RPD concluded that the appellants could obtain status in Brazil that was substantially similar to that of its nationals, but did not do so. It noted that the male appellant's name is on the list of people whom the Brazilian authorities granted permanent residence to. The RPD agreed with the Minister's submissions that the female appellant was able to avail herself of a residence permit issued as part of family reunification to obtain permanent residence. The male appellant is not excluded [27] The RPD erred in analyzing the male appellant's status in Brazil in stating that his name is on the list of people mentioned in the ministerial act of November 2015. It is the female appellant's name that is on that list. The Minister states that he had access to a permanent resident family reunification visa in relation to his spouse. I disagree with the Minister. The family reunification visa can indeed be granted to a foreign national who has a residence authorization in Brazil for a dependant,4 including a spouse. The article of the law determines that the spouse is the husband or wife. An extract of the marriage certificate must be provided with the application. Yet, there is nothing to indicate that the appellants are married. In their BOC Form, they state that they are common-law partners, and there is no marriage certificate on the record. [28] The male appellant stayed in Brazil from November 16, 2012, to May 23, 2016, according to his IMM0008 form; according to his testimony, it was from August 11, 2012. He testified that he had obtained a work permit, a tax identification number (CPF) and never applied for permanent residence. He worked in Brazil as a XXXX XXXX, stated that he did not have the right to study there and that he did not have access to medical treatment. He stated that he renewed his work permit in 2014, and in 2016, he was unable to renew it. The male appellant did not provide any document on his status in Brazil, stating that those papers were lost in the Colombian forest. From the documentary evidence,5 it can be noted that a number of Haitians have a tax identification number and a work permit without having an identity card, like the male appellant. These documents are also issued to people who apply for asylum. [29] After analyzing the evidence and the documentary evidence, I cannot conclude that the male appellant had permanent residence in Brazil or that he could obtain it. At best, he could have applied for asylum, but this status does not grant him the rights substantially similar to nationals of the country. The male appellant is not excluded from protection pursuant to Article 1E of the Convention. The female appellant could obtain status similar to that of Brazilians [30] The RPD erred in analyzing the status of the female appellant in Brazil. However, my conclusion is the same, namely that she failed to file an application to obtain a status akin to that of Brazilian nationals. [31] Contrary to what the RPD mentioned, the name of the male appellant is not on the list of people in the ministerial act of November 2015, but rather that of the female appellant.6 She lived in Brazil between 2014 and May 23, 2016. According to her testimony, she entered Brazil in XXXX 2014, while on her IMM0008 form, she states that she lived there from July 11, 2014, to May 2, 2016, and on her IMM5669 form, she states that she left Haiti in XXXX 2014 and entered Brazil in XXXX 2014. This is prima facie evidence that she had permanent residence in Brazil when she left there. It was therefore up to her to establish that she did not have this status at the time of the hearing and to explain the reasons why she did not avail herself of possibly regularizing her status in Brazil, even though she alleges that she fears returning to her country of nationality. She did not do so. [32] The female appellant submits that she did not have the same rights as permanent residents because of the discrimination she experienced in Brazil. [33] At the hearing, the male appellant stated that he did not have access to health care and he was unable to study. The female appellant did not specify her rights. She stated that she left Brazil because she could not pay the bus fare or have access to health care when she was pregnant. According to the objective documentary evidence,7 permanent residents have the same rights as Brazilian nationals, except the right to vote and carry out their military service. These rights are similar to those of the country's nationals. The issue of the discrimination experienced in Brazil is assessed when analyzing the factor of the reason for the loss of status. The female appellant cannot return to Brazil [34] The appellants submit that the RPD acted in a way that was superficial, biased and even mean in its analysis, which constitutes a breach of the principle of natural justice. For them, their status is no longer valid because two years have passed since they left Brazil. [35] The RPD concluded that it was unable to establish conclusively whether the appellants could return to Brazil. Although it raised some concerns regarding their credibility, the RPD granted them the benefit of the doubt and finds that this factor weighs against exclusion. [36] I concluded that the male appellant is not excluded as he did not have permanent resident status in Brazil or he could not apply for it. This part of the analysis based on the factors in Zeng therefore concern only the female appellant. [37] The RPD's conclusion is correct. The RPD's analysis is not biased. It analyzed the facts, and although it found the appellants not to be credible regarding the steps they allegedly took with Brazilian authorities to check the loss of their status, it concluded in the appellants' favour, namely that they could not return to Brazil because of an absence of more than two years. I share the concerns of the RPD as to the credibility of the appellants who testified that the Brazilian authorities confirmed for them in January 2018 that they had lost their status because they were absent from the country for more than two years, even though that on that date, two years had not gone by. [38] The female appellant left Brazil in XXXX 2016. According to the objective documentary evidence,8 a foreigner who absents herself from Brazil for a period exceeding two years loses permanent residence and can recover her status if she is a member of a certain category.9 The female appellant does not fall into one of those categories. The documentary evidence also refers to10 categories of people whom visas can be granted to, which is not her case either. [39] The female appellant left Brazil more than two years ago, and the evidence establishes that she cannot return to Brazil. [40] This factor weighs against exclusion. The female appellant voluntarily left Brazil [41] The female appellant argues that they left Brazil because they could no longer breathe, they were fed up, and as a result, the loss of her status is involuntary. She suggests that if they were at ease in this country they would not have taken a dangerous route to the United States. [42] According to the RPD, the appellants voluntarily left Brazil because they did not submit any evidence of the accumulated repercussions that possible acts of discrimination would have on them and because they submitted that they left Brazil primarily for economic reasons. [43] The RPD conclusion is correct. The female appellant's leaving Brazil was voluntary. [44] To establish that the reason for losing her status was involuntary, the female appellant must establish that when she left-and not prospectively-her family was living in either a situation that amounts to a serious possibility of persecution, or that their lives were at risk or that their personal situation was such that the decision to leave the country was the only possible choice. [45] The female appellant does not allege any ground against Brazil in her BOC Form. At the hearing, she stated that she left Brazil because they did not have the means to pay for a house, that she did not have enough money for bus fare to get to the hospital. She also spoke about discrimination in general. I understand that the appellants could have had been fed up with their life in Brazil owing to their poor economic conditions. However, this reason is not reason enough to conclude that their personal situation forced them to leave that country. [46] The appellants did not allege any act of discrimination against them during their stay in Brazil. [47] Discrimination is real without being systemic in Brazil. There are laws against racial discrimination and inciting racial discrimination. Discrimination based on race is prohibited in relation to access to private and public space, employment and housing. Some 52% identifies as [translation] "non-white." Affirmative actions are promoted in Brazil based on the Racial Equity Statute.11 Despite this, Afro-Brazilians and dark-skinned people frequently face discrimination. According to the report of Amnesty International,12 acts of discrimination against refugees multiplied in 2016/2017. For instance, asylum seekers regularly reported that they were the victims of discrimination when they attempted to access public services, namely in the area of health care and education. The Special Rapporteur13 observed that Brazilian society is currently experiencing demographic changes. As it gains economic strength, Brazil is increasingly becoming a country of destination for migrants, refugees and asylum seekers, who are often in vulnerable situations in society. Despite this, these communities can benefit from adequate access to social services. She recognizes that some Haitian refugees may have been victims of violent attacks, apparently on account of their race and nationality. In the case of the appellants, they did not allege any act that they may have been subjected to by reason of their race at the hands of the general public. [48] The appellants do not match the profile of people who are most often the victims of murder in Brazil.14 Like other countries in Latin America and Central America, a large percentage of this violence is related to organized crime and drug trafficking. Victims of murder are often young black men from poor neighbourhoods, favelas, who are recruited by organized crime, which is not the case of the appellants. [49] The female appellant failed to establish, based on Zeng, that at the time of her departure, and not prospectively, her family was either in a situation that amounted to a serious possibility of persecution, or that their lives were at risk or that their personal situation was such that the decision to leave the country was the only choice possible. Her departure for the United States is therefore voluntary. [50] The analysis of this factor weighs in favour of exclusion, particularly if you consider that it is established in the case law that "[r]efugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already."15 Canada's international obligations [51] The RPD did not draw any conclusion in relation to Canada's international obligations, one of the factors mentioned in Zeng. The appellants are not contesting it. [52] The female appellant cannot return to Brazil, but can return to Haiti, her country of citizenship. Canada fulfilled its international obligations as she would not be subjected to either a serious fear of persecution or a risk of harm under section 97 of the IRPA in her country of citizenship. [53] This factor weighs in favour of exclusion. The female appellant is excluded from Canada's protection [54] The female appellant could have obtained permanent resident status in Brazil, a status substantially similar to that of Brazilian nationals and failed to do so. She cannot return to Brazil, which weighs against exclusion. She voluntarily left that country to go to the United States, which weighs in favour of exclusion. She will not be subjected to a risk if she returns to her country of origin, and Canada's international obligations have been respected. These factors weigh in favour of exclusion, and I give them more weight. [55] The female appellant is excluded from Canada's protection under Article 1E of the Convention. The RPD's conclusion is correct. CONCLUSION [56] The appeal is dismissed. [57] The RAD confirms the RPD's determination. XXXX XXXX is excluded under Article 1E of the Convention and cannot be a Convention refugee or a person in need of protection. [58] The RAD confirms the RPD's determination on other grounds. XXXX XXXX is not excluded under Article 1E of the Convention and is not a Convention refugee or a person in need of protection. Agnès Connat Me Agnès Connat February 13, 2020 Date IRB Translation Original language: French 1 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118, (Zeng), at para. 28. 2 Archive - National Documentation Package (NDP), Haiti, July 20, 2018, Tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a ... Immigration and Refugee Board of Canada, July 3, 2018. HTI106117.FE., "... 'In Haiti, 'rumor' is an informal institution used... to achieve specific objectives' and that 'this institution [translation]'is widely used by gangs and gang leaders to spread fear'." 3 Supra,endnote 2, "According to the Assistant Professor, rumours are rife in Haiti and are an effective way of locating people because 'Haitians tend to be geographically tied to a small area and so anyone outside of their [usual] circle will be quickly recognized' (Assistant Professor 1 June 2018). She added that Haitians are generally well aware of their neighbours' business" (assistant professor, 1 June 2018). 4 Archive - NDP, Haiti, July 20, 2018, Tab 14.11: Brazil and Haiti: Situation of Haitians in Brazil, including rights and obligations; permanent resident status; documents issued to Haitians, including Foreigner Identity Cards... Immigration and Refugee Board of Canada. 21 June 2018. ZZZ106127.FE, p. 15-16 "For the purposes of family reunification, an appropriate visa may be granted to dependants of any Brazilian citizen or foreign national over the age of 18 who are authorized to reside in Brazil. The following are considered to be dependants: a. Spouse (husband/wife); b. Ascendants (father/mother), as long as the applicant (Brazilian citizen) proves their need for assistance; c. Single children under the age of 18, or over the age of 18 on the condition that they are unable to provide for themselves; d. Brothers/sisters, grandsons (granddaughters) or great-grandsons (greatgranddaughters) if orphans, single and under the age of 18, or over the age of 18 on the condition that they are unable to provide for themselves;" 5 Supra, endnote 4, p. 34-35. "[m]ost Haitians have casual, odd jobs, without a work permit, because they do not have papers or identity cards. ... Some only have a protocol [a temporary document given to immigrants until they receive their CPF, and a work permit]. Others have a tax identification number and work permit but do not have an identity card. ... The lack of documents is one reason for unemployment among Haitian immigrants. (quoted in Repórter Brasil 31 Jan. 2016, square brackets in original)." 6 Supra, endnote 4. 7 Archive - NDP, Brazil, April 30, 2018, Tab 3.4: The rights and duties of permanent residents, including the rights and duties of individuals who have a permanent visa, such as professors, researchers, highly-skilled technicians and foreign scientists; procedure to obtain or renew a residency permit; grounds for losing permanent residence (2014-May 2016) Immigration and Refugee Board of Canada. May 25, 2016. BRA105515.FE 8 Ibid. 9 Ibid, p. 5. "[t]he Consular Authority may grant a new VIPER to a foreigner who once lived in Brazil as a permanent resident and then left in order to pursue or complete: - University studies (undergraduate or graduate level); - Professional training; - Research activity at an institution recognized by the Brazilian Ministry of Science and Technology; - Professional activity for the Brazilian government." 10 Archive - NDP, Brazil, April 30, 2018, Tab 3.7: Brazil and Haiti: Resident status of Haitian citizens in Brazil, including their rights and responsibilities (2010-September 2017) Immigration and Refugee Board of Canada. October 3, 2017. ZZZ105986.FE. [translation] "visas for family reunification or for highly-qualified positions such as professors, researchers, top technicians, investors." 11 Archive - NDP, Brazil, April 30, 2018, Tab 2.7: National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21: Brazil. Brazil. February 27, 2017. A/HRC/WG.6/27/BRA/1. 12 Archive - NDP, Brazil, April 30, 2018, Tab 2.2: Brazil. Amnesty International - 2016/2017 Report: The State of the World's Human Rights. Amnesty International. 2017. 13 Archive - NDP, Brazil, April 30, 2018, Tab 13.2: Report of the Special Rapporteur on minority issues on her mission to Brazil. United Nations. Human Rights Council. February 9, 2016. A/HRC/31/56/Add.1. 14 Ibid. 15 Canada (Attorney General) v. Ward, [1993] 2 RCS 689, p. 726 ; recently cited in Fleurant v. Canada (Citizenship and Immigration), 2019 FC 754, at para 13. [HL1]https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36788/index.do --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-08959 MB9-08960 RAD.25.02 (January 2020) Disponible en français 10 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 (January 2020) Disponible en français