MB9-15010

RAD File No. / No de dossier de la SAR : MB9-15010 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 October 7, 2019 Date de la décision Panel Me Love Saint-Fleur Tribunal Counsel for the person who is the subject of the appeal François Jean Denis 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 OVERVIEW [1] XXXX XXXX is a citizen of Haiti. He is alleging that if he returned to Haiti, he would be killed by criminals associated with XXXX XXXX due to the latter's arrest following a land conflict in Croix-des-Bouquets. [2] The Minister of Immigration, Refugees and Citizenship (the Minister) requested that the Refugee Protection Division (RPD) reject the appellant's claim for refugee protection because he is a permanent resident of Brazil, which means that he is subject to Article 1E of the United Nations Convention relating to the Status of Refugees (hereinafter referred to as the Convention) and that he must be excluded from it. [3] The RPD determined that the appellant had been granted permanent resident status in Brazil, but that at the time of the hearing, he no longer had this status. In order to determine whether Article 1E of the Convention applied, the RPD analyzed the factors mentioned in Zeng1 and concluded that the appellant is excluded from the application of Article 1E of the Convention. [4] The appellant is appealing against the decision of the RPD dated June 8, 2019. In his memorandum, the appellant notes that he is appealing for the three following reasons: 1) lack of rigour in assessing the appellant's credibility; 2) the RPD's selective approach; and 3) the lack of in-depth analysis of the claim for refugee protection. [5] In this appeal, the Refugee Appeal Division (RAD) must determine whether the RPD erred in its analysis of the factors in Zeng and in its determination of whether Article 1E of the Convention applies to the appellant's situation. After a full and independent analysis of the evidence presented, I am of the opinion that the RPD's decision was correct and that it did not err in its assessment. DETERMINATION OF THE APPEAL [6] I confirm that the appellant is a person referred to in Article 1E of the Convention, and that consequently, he is excluded from the Convention pursuant to Article 1E. [7] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the determination, namely, that the appellant is neither a Convention refugee nor a person in need of protection. I dismiss the appeal. BACKGROUND [8] On July 22, 2010, the appellant was allegedly attacked by armed men. Afterward, he reportedly received threats that led him to take refuge at his mother's house in La Plaine. After one year with his mother, the threats allegedly resumed. Because of these ongoing threats, he left Haiti for Brazil on XXXX XXXX XXXX 2011. There, he was allegedly threatened with death and in March 2016, he reportedly left for the United States. On XXXX XXXX XXXX 2017, the appellant arrived in Canada to claim refugee protection. THE ROLE OF THE REFUGEE APPEAL DIVISION [9] With respect to questions of fact, questions of law, and questions of mixed fact and law, I applied the correctness standard, in accordance with the Federal Court of Appeal's decision in Huruglica.2 I will therefore conduct my own analysis of the record, which includes listening to the recording of the hearing, to determine whether the RPD erred. ANALYSIS OF THE MERITS OF THE APPEAL [10] The appellant submits that he appealed the RPD's decision because it lacked rigour in assessing his credibility, its approach was selective and it did not conduct an in-depth analysis of his claim for refugee protection.3 He did not explain the reasons for these grounds. I understand that these are general grounds and that in the "Observations" section of his memorandum of appeal, he notes the RPD's errors.4 This assessment will therefore consist of evaluating whether the RPD committed the alleged errors. Analysis of exclusion 1E [11] The appellant submits that the RPD did not demonstrate rigour in concluding that he is excluded under Article 1E of the Convention. He believes that the RPD limited itself to the Minister's arguments and did not take into consideration the documentary evidence on Brazil and instead conducted a microscopic examination of the evidence. With all due respect to the appellant, I do not agree. [12] Based on my own analysis, the evidence on the record and the appellant's testimony at the hearing show that, at the time of his departure from Brazil, he was a permanent resident of that country. [13] The evidence provided by the Minister, namely, the official journal of Brazil of June 25, 2012, mentions that he was granted permanent residence on humanitarian grounds.5 A stamp in his passport confirms that on September 13, 2012, he registered with the Brazilian authorities as a permanent resident.6 According to the information in the national documentation packages on Brazil and on Haiti, the appellant's name appears on the list of 43,781 Haitian nationals who were granted permanent residence by the Brazilian authorities.7 Moreover, the appellant acknowledged in his testimony at the hearing that when he left Brazil, he had permanent resident status.8 [14] In these circumstances, I conclude that, at the time of his departure from Brazil, the appellant had permanent resident status. The RPD made this conclusion based on all of the aforementioned evidence. The RPD did not limit itself to the Minister's arguments, but rather took into account all of the evidence on the record, namely, that provided by the Minister, the documentary evidence available on Brazil, as well as the appellant's testimony. It did not err. [15] Despite his testimony at the hearing, the appellant submits on appeal that he did not have permanent resident status in Brazil and that the word permanent in the protocol (the official journal of Brazil of June 25, 2012) does not have the same meaning in Canada. He stated that his status did not give him the same rights as those of Brazilian nationals and that it only enabled him to return to Haiti. He noted that permanent resident visa holders do not have the right to return to Brazil if they leave the country, and that if they leave, their visas are cancelled. This is not what the documentary evidence indicates. [16] I believe that the RPD should ideally have ruled specifically on the matter of whether or not those who have permanent resident status in Brazil have essentially the same rights and duties associated with holding citizenship in that country. That said, this is not a fatal error since, based on my own analysis, the documentary evidence available on Brazil on the record shows that this is the case. Specifically, it appears that the Brazilian Federal Constitution states the following: [translation] Art. 5. All persons are equal before the law; without any distinction whatsoever, Brazilians and foreigners residing in Brazil are ensured the right to life, to liberty, to equality and to property.... Art. 6. Education, health, work, leisure, security, social security, protection of motherhood and childhood, and assistance to the destitute, are social rights, as set forth by the Constitution (ibid. 1988).9 [17] The fact that the appellant is today no longer able to return to Brazil does not refute the fact that he had permanent resident status at the time of his departure from that country. Since Brazilian law states that a permanent resident loses their status if absent from the country for a period exceeding two years unless confirmation is provided,10 it appears that his inability to return to Brazil stems from the loss of his permanent resident status. This is because, at the time of his hearing before the RPD, which was held on April 29, 2019, the appellant stated that he had left Brazil in XXXX 2016, namely, more than two years earlier. [18] The appellant submits that he should not be excluded under the Convention since, on the day of the hearing, he lost his permanent resident status in Brazil because more than two years had passed since he left the country. [19] In my opinion, the appellant's argument that he had lost his permanent resident status is hard to reconcile with his previous argument that he never had such status in Brazil. How can we lose something we never had? The memorandum of appeal gives no insight into reconciling these two theories. [20] That said, the assessment does not end with the finding that he lost his permanent resident status. Case law has established that if the appellant did not have permanent resident status on the date of the hearing, the next question is whether he previously had such status and lost it, or had access to such status and failed to acquire it.11 The RPD correctly went further in its assessment in order to weigh various factors based on case law set forth by the Federal Court of Appeal in Zeng to determine whether the exclusion applies in the appellant's circumstances. Analysis of the factors in Zeng [21] The appellant maintains that the RPD committed the error of being over-vigilant in its analysis of Zeng12 and that some of its conclusions in this regard are unreasonable and based on non-determinative elements. I do not share this view. The RPD weighed all of the factors set out by the Federal Court of Appeal in Zeng to determine the application of Article 1E of the Convention, including the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the appellant would face in his home country of Haiti, Canada's international obligations, and any other relevant facts. Voluntary nature of the claimant's loss of status in Brazil [22] The RPD concluded that the appellant had voluntarily lost his permanent resident status in Brazil because he did not demonstrate that he had been persecuted or threatened in Brazil and that consequently, when he left Brazil, there was no well-founded fear of persecution, or of being subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment. [23] The appellant submits that, because of what he was experiencing in Brazil, he clearly could no longer continue to evolve in Brazilian society and that, therefore, the loss of his permanent residence is involuntary. To support this claim, he maintains that he explained to the RPD how he faced all types of discrimination in Brazil; he did not have access to health care, education or decent housing; he could not travel abroad; he was very limited; and he had to work in extremely difficult conditions. [24] In his memorandum of appeal, there are no allegations that the RPD failed to consider his testimony on his personal situation in Brazil. The appellant also did not explain how the RPD allegedly erred in its assessment of his own situation in Brazil. After conducting my own analysis, I do not see any error by the RPD, which did not believe the appellant's allegations that he had been discriminated against and threatened in Brazil. [25] According to his testimony at the hearing, the appellant allegedly faced condescension and disrespect from Brazilians, was reportedly threatened with death at work, and was allegedly refused hospital treatment, and Brazilian public transit users reportedly refused to sit next to him and would ask him to give up his seat. However, this information was omitted from his Basis of Claim Form (BOC Form). When asked about these omissions, he explained to the RPD that he was very stressed when he arrived in Canada. He then explained that he had failed to mention the information in his update provided before the hearing because his Haitian friends in Canada did not that he could do it and because he believed that he could discuss it at the hearing. In his memorandum, the appellant does not contest testifying in this manner before the RPD and he does not contest the omissions in his BOC Form or his explanations. [26] In my opinion, these explanations are not satisfactory for the following reasons. The appellant signed his BOC Form, stating that the information provided therein is true, complete and correct and that his declaration has the same force and effect as if made under oath, which he also confirmed at the start of the hearing.13 The BOC Form clearly asks that he indicate whether he has ever been harmed, mistreated or threatened and to explain in detail what happened. The appellant was represented by legal counsel when he submitted his BOC Form. In this context, I conclude that the appellant did not demonstrate that he had been harmed, threatened, or persecuted in the manner alleged at the hearing. He therefore did not demonstrate a fear of persecution or that he would be subjected to a risk set out in subsection 97(1) of the IRPA. [27] In these circumstances, the appellant's mere mention in his memorandum that the RPD therefore erred in assessing his prospective risk of returning to Brazil does not hold water.14 In short, the loss of permanent resident status in Brazil is a result of the appellant's own volition. The RPD did not err. Possibility of returning to Brazil [28] The appellant submits that the documentary evidence on Brazil, namely, RIR BRA105515.FE in Tab 3.4 of the National Documentation Package on Brazil clearly states that permanent resident visa holders cannot return to Brazil if they leave the country, and that if they leave Brazil, their visa will be cancelled. [29] This is not exactly what the document states, but this has only little importance in the context of this appeal since the RPD found that, on a balance of probabilities, the evidence on record does not establish the possibility for the appellant to return to Brazil. It is therefore clear that the appellant shares the RPD's assessment. Like the RPD, he is of the opinion that, on a balance of probabilities, he cannot return to Brazil. The appellant is not contesting the RPD's conclusions regarding its interpretation of the documentary evidence and is not reporting any errors in this respect. I do not see any errors either. Risk in Haiti [30] The RPD found that the appellant was not credible with regard to his allegations of risk in Haiti because significant omissions and contradictions that were not satisfactorily explained were noted in many aspects of his account. Among the contradictions noted by the RPD, the appellant opted to address the following in his memorandum; consequently, I will focus my analysis on these elements. [31] The RPD especially considered the contradictions between the oral testimony, his BOC Form and the evidence that he himself provided regarding the attack of July 22, 2010, and the fact that he would ultimately provide three different versions of the same event. The RPD believed that the appellant was unable to clearly and promptly explain the circumstances of the attack and that his testimony was confusing and hesitant. [32] The appellant claims that the RPD erred in its assessment of his credibility. He is not contesting having testified in the manner noted by the RPD at paragraphs 32 to 35 of its decision or that he provided three versions of the same incident. Yet, he notes that these facts could have been explained better and more spontaneously. He argues that a hearing causes great stress and that the RPD did not demonstrate understanding by drawing negative inferences from a person who is going before a panel for the first time. [33] While being sensitive to the stress the appellant may have experienced at his hearing before the RPD, I believe, however, that this stress would not explain why he provided three different versions of the same event. All the more since it was a significant event in his account as he was allegedly violently beaten by his agent of harm's associates due to a land transaction gone wrong; a transaction at the root of all his problems in Haiti. I find that this undermines his credibility. The RPD did not err. [34] The RPD also found that the contradictions, which were not explained in a satisfactory manner, between the appellant's account and his complaint on July 23, 2010,15 regarding the time the July 22, 2010, attack took place and regarding the presence of a third person when the land purchase contract was signed, are significant and undermine the appellant's credibility. [35] In his memorandum, the appellant explains that the contradiction regarding the time of the attack was due to a clerical error by the peace court, the same explanation he provided to the RPD. In my opinion, even if I accepted that this could be a clerical error, it is clear that there is indeed a contradiction between the appellant's testimony and the evidence concerning a central event in his account. This clerical error on an official document from a government entity effectively undermines the probative value that can be assigned to it. But that is not the only problem with the document. I believe that there is one that is even more serious. [36] After reading the complaint, it is clearly implied that there was a third person present for the signing of the contract, and not only the appellant and his agent of harm. The appellant explained on appeal that this third person was a witness for the purchaser and the seller. Yet, when asked by the RPD about this contradiction, he confirmed that there was no third person present, and he did not offer any other explanation to justify this contradiction; this in no way explains the contradiction raised. I am of the opinion that this is a significant contradiction as it involves the signature of a transactional contract with his agent of harm, a transaction at the root of all his alleged problems in Haiti. His credibility is further undermined. The RPD did not err. [37] It is worth noting that the role of the RAD is not to provide appellants with the opportunity to complete a deficient record before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.16 [38] I am of the opinion that the problems noted about this complaint are such that he should be given no probative value. [39] The appellant submits that the RPD erred in giving no probative value to the documents provided as evidence. [40] The appellant argues that the sales receipt for the land17 was wrongfully dismissed because it provided no details on the land purchased while he clearly told the RPD that he did not have any other documents because the person who sold him the land had misled him. He claims that the RPD chose to ignore these explanations and to discredit him without a valid reason. I disagree. [41] First, the RPD did not dismiss the sales receipt without reason. Rather, it explained at paragraph 46 of its decision why it gave it only low probative value, namely, because he provided no details on the land in question. The appellant's explanation that he did not have any other documents regarding the transaction changes nothing in terms of the lack of detail on the receipt. The RPD did not err as alleged. [42] Next, with regard to the complaints made to the police by his loved ones,18 the appellant submits that the RPD rejected them on the false pretext that they had been made after he filed his claim for refugee protection. He believes that the RPD did not demonstrate rigour. In my opinion, the accusation of using a false pretext, in other words, deceit, does not hold water. [43] I believe that the RPD rigorously explained at paragraphs 51 and 52 of its decision why it decided to give no probative value to these documents. It is not because the appellant provided them after this claim for refugee protection, that it made this decision. It was instead on the grounds of the appellant's overall lack of credibility, because the facts alleged in his BOC Form were not credible, along with the allegations central to his claim for refugee protection, or that he was deceived by a man who allegedly sold him some land and that this man was trying to kill him, that the RPD found that the alleged facts in his addendum were also not credible. This is also due to the fact that these complaints simply show that the appellant's loved ones had made statements to the police after the claimant had filed his claim for refugee protection, but that it was not objective evidence corroborating that the facts alleged in these complaints had actually occurred. In these circumstances, I believe that the RPD correctly decided to give no probative value to the complaints of the appellant's loved ones. [44] The RPD commented on other contradictions and omissions in the appellant's account, including the fact that he failed to indicate in his BOC Form that he started to receive threats from his agent of harm in January 2010 because he was stressed at the border and had forgotten to note it. Given that this is an important fact and that he signed and confirmed at the start of the hearing that the information in his BOC Form, which asks him to indicate any threats as well as the date of occurrence, wherever possible, was true, complete and correct, I do not find this response to be satisfactory. The appellant's credibility is further undermined. [45] In my opinion, after completing my own analysis of the record, I find that the appellant is not credible and did not demonstrate that he experienced the problems alleged. The RPD did not err. Canada's international obligations [46] The RPD concluded that, in light of its determination that there exists no well-founded fear of persecution or risk as set out in subsection 97(1) of the IRPA for the appellant in Haiti or in Brazil, Canada's international obligations are met by excluding the appellant from the application of the Convention. [47] The appellant submits that the RPD did not consider the documentary evidence available on Brazil and that it chose certain aspects while disregarding other, more important aspects. He notes that the objective evidence on Brazil refers to a situation of discrimination against blacks who are mistreated, murdered and continue to be victims of certain forms of discrimination in exercising their fundamental rights. However, the appellant did not mention in his memorandum to which documentary evidence he was referring. That said, I consider that the RPD should have mentioned in its decision that it took into consideration the documentary evidence on the situation of black people and Haitians in Brazil. [48] Based on my own analysis, I note that the documentary evidence indicates that Brazil has established a legislative framework to prevent racial discrimination and that the legislation prohibits racial discrimination, particularly in accessing public and private facilities, employment and housing. However, it also points to a difficult socio-economic climate affecting the entire country and Brazilian citizens. Although Haitians in Brazil were a much appreciated workforce in the civil construction and hotel industries, which experienced a labour shortage, after the 2016 Olympic Games and following the economic recession, a significant number of them left Brazil. Haitians were affected by racism demonstrations particularly in the area of employment. For blacks, it has been reported that 52% of the Brazilian population identifies as non-white and that dark-skinned people, especially Afro-Brazilians, face discrimination. They are particularly under-represented in the public service and they have a higher unemployment rate.19 [49] I am of the opinion that, although racial discrimination exists in Brazil, this does not mean that there is a serious possibility that the appellant would be exposed to persecution throughout Brazil by reason of his nationality or race. Furthermore, as mentioned earlier, he failed to demonstrate that he had been harmed or threatened in Brazil as alleged at the hearing, that he has a well-founded fear of persecution in Brazil or that he risks being subjected to a risk under subsection 97(1) of the IRPA. The same applies with respect to Haiti. In these circumstances, I conclude that Canada's international obligations are met by excluding the appellant from the Convention. [50] Consequently, under section 98 of the IRPA, since the appellant is a person referred to in section E of Article 1 of the Convention, he is neither a "Convention refugee" nor a "person in need of protection." CONCLUSION [51] The RAD dismisses the appeal and confirms the determination, according to which the appellant is neither a Convention refugee nor a person in need of protection pursuant to paragraph 111(1)(a) of the IRPA. (Signed) Love Saint-Fleur Me Love Saint-Fleur October 7, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118, (Zeng), para. 28. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Appellant's record, p. 16. 4 Appellant's record, p. 21. 5 Document 6 - Exhibit M-1. Official journal of the union (DOU) of June 25, 2012, page 37, Section 1. 6 Refugee Protection Division (RPD) record. Document 1: Information package by Canada Border Services Agency/Immigration, Refugees and Citizenship Canada, see pp. 10 and 12 of the appellant's passport. 7 National Documentation Package on Brazil, March 29, 2019, 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. 8 Minute 00:21:36 et seq. of the recording of the hearing before the RPD. 9 RPD record. Document 3 - National Documentation Package on Brazil, March 29, 2019. Tab 3.4: Immigration and Refugee Board of Canada. 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). BRA105515.FE. May 25, 2016. 10 RPD record. Document 3 - National Documentation Package on Haiti, March 29, 2019 (NDP on Haiti), Tab 14.11: Response to Information Request, Immigration and Refugee Board of Canada, June 4, 2018, ZZZ106067. RPD record. Document 3 - National Documentation Package on Brazil, March 29, 2019. Tab 3.4: Immigration and Refugee Board of Canada. 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). BRA105515.FE. May 25, 2016. 11 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118, (Zeng). 12 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118, (Zeng). 13 Minutes 00:03:39 et seq. of the recording of the hearing before the RPD. 14 Appellant's record. P. 23 of his memorandum of appeal. Under the section entitled: Possibility of returning to Brazil. 15 RPD record. Document 4 - C-03 Complaint of July 23, 2010. 16 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraph 54. 17 RPD record. Document 5 - Exhibit C-2: Receipt for land payment (2). 18 RPD record. Document 5 - exhibits C-4, C-5, C-6. 19 RPD record. Document 3 - National Documentation Package on Brazil, March 29, 2019. Tab 3.4: Immigration and Refugee Board of Canada. 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). BRA105515.FE. May 25, 2016. Tab 3.6: Brazil and Haiti: Foreigner identity cards (Cédula de Identidade de Estrangeiro, CIE) issued to Haitian residents, including the purpose of the information indicated on them (2010-September 2017) Immigration and Refugee Board of Canada. October 17, 2017. ZZZ106003.FE. 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. ZZZ105986.FE. October 3, 2017. Tab 2.1: Brazil. Country Reports on Human Rights Practices for 2018. United States. Department of State, March 13, 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-15010 RAD.25.02 (April 4, 2019) Disponible en français 5 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