MB8-04528

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 : MB8-04528 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 (QC) Appel instruit / entendu à Date of decision December 19, 2018 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Cristian Roa-Riveros Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX, the appellant, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) dated January 10, 2018. DETERMINATION OF THE APPEAL [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the impugned decision that the appellant is subject to the Article 1E exclusion clause under the Convention Relating to the Status of Refugees (Convention) and is neither a Convention refugee nor a person in need of protection. OVERVIEW AND FACTUAL BACKGROUND OF THE APPEAL [3] The appellant alleges that he fled Haiti on XXXX XXXX, 2014, after some run-ins with a group of individuals who attacked him at his business. He reportedly went to Brazil in XXXX 2014 and obtained permanent residence there. In XXXX 2016, he allegedly fled again to the United States, fearing that the same criminals from Haiti were in Brazil and would recognize him. He apparently stayed in the United States until XXXX 2017 before coming to Canada. He acknowledged that he has Brazilian permanent residence, and he alleges that he fears returning to Brazil by reason of the persecution and discrimination to which he was subjected. [4] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the RPD to argue the following: - the appellant's name is on the list of 43,781 Haitian nationals who were granted permanent residence in Brazil under the joint ministerial decision of the ministry of justice and the ministry of labour and social affairs, as published in the official journal of the union on November 12, 2015; - this information establishes a prima facie case that the claimant has permanent residence status in Brazil; - according to the documentary evidence, the rights and obligations of permanent residents of Brazil are substantially similar to those of citizens, including the rights in the area of health care, education and employment; - if the appellant has permanent resident status in Brazil, he should be refused refugee protection through the application of Article 1E of the Convention; and - the appellant has the burden of establishing that he could not return to Brazil. [5] The RPD determined that the appellant was excluded under Article 1E of the Convention and that he had not established a reasonable fear of persecution or harm within the meaning of subsection 97(1) should he return to Brazil, specifically in that - he had permanent residence in Brazil; - the evidence submitted did not make it possible to find that Haitians or Black people were subjected to this violence by reason of their race or nationality; - in question 3 of his Basis of Claim Form (BOC Form), he failed to indicate Brazil as the country where he risked experiencing serious harm; - he never contacted the police or attempted to change his place of residence after he was subjected to persecution or discrimination; and - he never claimed or made any effort to apply for asylum once he arrived in the United States. [6] On appeal, the appellant submits that the RPD erred in that it did not observe the principles of natural justice and procedural fairness, namely in that - it was apparently overzealous in looking for elements that were unfavourable to the claim, focusing on secondary elements; - it did not take into account the elements in the National Documentation Package on Brazil (NDP-Brazil) that were favourable to the appellant's claim; - it did not consider the appellant's profile; - the presumption of state protection was rebutted, as was the internal flight alternative; and - it did not consider the perspective that the appellant would lose his status in Brazil and failed to analyze the situation if he had to return to Haiti. RAD's role [7] The RAD reviews RPD decisions, after conducting its own analysis of the record, by applying the correctness standard of review. The exception to this rule concerns the situation where the RPD enjoys a meaningful advantage in the assessment of credibility or the weight to be given to the oral evidence it hears; the RAD can then grant a measure of deference.1 [8] I will apply the correctness standard of review by conducting an independent analysis of the record, including all the evidence and listening to the recording. ANALYSIS [9] The determinative issue is the existence, should he return to Brazil, of a serious possibility of persecution for the appellant under section 96 or, on a balance of probabilities, of a risk of harm within the meaning of subsection 97(1) of the IRPA. [10] At first sight, the RPD finding that the appellant has permanent resident status in Brazil is correct and I concur. The RPD made this finding by relying on the appellant's testimony in this regard, corroborated by a copy of his Brazilian permanent residence card. a- In the event of return to Brazil, a risk of serious possibilities of persecution or harm, on a balance of probabilities within the meaning of subsection 97(1) of the IRPA [11] In question 2(a) of his BOC Form, signed on September 28, 2017, the appellant alleges that he fears that one of the Haitians with whom he had trouble in Haiti is in Brazil, and would recognize him and hurt him. [12] In the amendment to question 2(a) on the BOC Form, wrongly dated January 9, 2017, he alleges that, in Brazil, he was subjected to persecution with constant and continuous discrimination, exemplified by harassment and questions from third parties. [13] The harassment experienced was allegedly demonstrated, initially, through questions from many people, at times repeated, about his origins and his contributing role in the lack of employment for Brazilians. Allegedly, his fear came from the dread that one of the people who spoke to him would put their words into action. [14] Secondly, the appellant was apparently the victim of harassment when stopped by two police officers. Before letting him go, they allegedly pointed their weapons at him, questioned him about his comings and goings and searched him. Although it was intended to be an example of harassment he experienced, the appellant nevertheless acknowledged that this sole police action was nothing more than a routine check without any other consequence. [15] Besides these incidents, the appellant was unable to identify other concrete situations involving him or of which he was personally aware. Having testified about a publicized case in which a young black man was falsely accused of possessing drugs, the appellant admitted that he knew nothing about the situation other than what he had learned from reading the newspapers. [16] Testifying that all of Brazil was racist towards Haitians, he justified the general nature of this comment by stating that he had learned this from hearing people talk and reading the newspaper, without any further details. Apart from what he testified that he had experienced, he was unable to describe another incident to demonstrate the persecution which he stated that he had been subjected to. [17] It is not denied that Afro-Brazilians face a high rate of violence and that, historically, they have been subjected to discrimination and racism. This situation has resulted in many of them being marginalized and impoverished. [18] The Country Reports on Human Rights Practices2 reports a situation of discrimination affecting Haitians. These situations involved violations by certain employers of their legal obligations and complaints made in this respect. This situation could not be considered as generalized. The Report of the Special Rapporteur on minority issues on her mission to Brazil3 also refers to attacks on Haitians and other minorities by reason of their race and nationality. With a few cases recorded, it could be described as a widespread situation in Brazil. According to the same report, migrants from Africa are particularly targeted. [19] However, not all discriminatory acts are persecution. According to the United Nations 1951 Convention Relating to the Status of Refugees, discrimination amounts to persecution if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, such as serious restrictions on a person's right to earn a livelihood, right to practise his religion, or access to normally available educational facilities.4 [20] Yet, the appellant testified that he had always worked during his stay in Brazil and was even able to have two different jobs. His permanent resident status gave him access to health care and education, among other services. [21] Although alleging that he had often been subjected to discrimination, he did not consider that it would be appropriate to mention this in his initial BOC Form. [22] The appellant was questioned to determine why, in question 3 of the BOC Form, he did not indicate Brazil as another country where he was at risk of serious harm. The explanation offered, based on his understanding, was that Brazil was of little importance because in the event of a possible deportation, he would be sent back to Haiti. [23] The appellant's explanations seem reasonable. The concepts of residence, permanent residence, asylum and citizenship are complex. It is not unreasonable to think that some of the actions or omissions in the appellant's BOC Form could be explained by his lack of knowledge of the ins and outs of his Brazilian status in the event of a possible deportation from Canada. [24] However, because he benefited from the assistance of a professional upon receipt of the ministerial notice of intervention, it becomes more difficult to explain why Brazil does not appear in the amendment as a country in which he would also fear a risk of harm. Although this failure is not fatal to the appellant's credibility, as it could be explained by a lack of diligence, the determination of the appellant's credibility, which the RPD drew from this fact, nevertheless remains correct for the following reasons. [25] The appellant's initial BOC Form refers to persecution in Haiti and does not describe any incidents in Brazil despite the fact that he lived there for two years. The fear that allegedly pushed him to flee Brazil stems solely from the mere possibility that a Haitian would recognize him in Brazil. A fear of this nature would persist in any country he happened to be. There is more. [26] When he specified the fear that he had in Brazil, the appellant did not consider that what he had experienced in Brazil would subject him to harm. [27] A reading of the initial BOC Form suggests that, had it not been for his fear of being found by chance in Brazil, he would have stayed there. It was that mere possibility that allegedly led to his leaving for the United States. The events reported in his amended BOC Form also do not make it possible to conclude that there is a serious possibility of harm. He acknowledged that the interaction with the police was part of a check. It was the only incident in two years. Besides statements made by passersby, he was not prevented from finding work or housing. Regarding the other incidents described, they are simply hearsay taken from the news, and the circumstances that caused them are unknown to him. [28] In closing, the appellant submits that the RPD failed to analyze his refugee protection claim against Haiti under subsection 97(1) of the IRPA, knowing that a two-year absence from Brazil would result in him losing his permanent residence. [29] As the RPD decision to exclude the appellant under Article 1E of the Convention was correct, so was not proceeding with an analysis of the situation in Haiti under subsection 97(1) of the IRPA. Taking into account the principles set out by the Federal Court of Appeal in Majebi,5 an assessment of exclusion under Article 1E is to be made at the time of the hearing before the RPD. [30] Hence, the decision that the appellant is excluded under Article 1E of the Convention and that he will not be subjected to a risk of harm is correct. CONCLUSION [31] The RAD dismisses the appeal and confirms the impugned decision that the appellant is excluded from refugee protection under Article 1E of the Convention and is neither a Convention refugee nor a person in need of protection, pursuant to subsection 111(1) of the IRPA. Richard Sheitoyan Me Richard Sheitoyan December 19, 2018 Date IRB translation Original language: French 1 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 NDP on Brazil, March 31, 2017, Tab 2.1, p. 25. 3 Ibid. Tab 13.2, p.5. 4 The United Nations 1951 Convention Relating to the Status of Refugees, July 28, 1951. 5 Majebi v. Canada (Citizenship and Immigration), 2016 FCA 274 (CanLII). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-04528 RAD.25.02 (September 18, 2018) Disponible en français 8 RAD.25.02 (September 18, 2018) Disponible en français