MC0-03431

RAD File No. / No de dossier de la SAR : MC0-03431 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 March 25, 2021 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Claude Whalen 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] The appellant, XXXX XXXX, a citizen of Haiti, is appealing the decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim on the grounds that she is a person referred to in Article 1E of the Convention. [2] The appellant did not submit new documents in support of her appeal.1 She is appealing the RPD's decision and argues that it erred in concluding that she is excluded. In addition, she argues that the RPD did not consider all of the evidence regarding the situation of Haitians in Brazil and that it erred in concluding that the appellant failed to establish that she was persecuted there. [3] She is asking the Refugee Appeal Division to allow her claim for refugee protection or to refer her case to the RPD.2 [4] After conducting an independent review of the evidence, which included listening to the audio recording of the hearing, I am of the opinion that the RPD erred when it failed to examine all the factors in Zeng. [5] The appeal is allowed. BACKGROUND [6] In the Basis of Claim Form (BOC Form), the appellant states that she fears for her life because of the political activities she carried out with her uncle in support of XXXX XXXX, a candidate for the Rassemblement des démocrates nationaux progressistes (RDNP) [rally of progressive national democrats]. [7] She alleges that in XXXX 2011, supporters of President Martelly beat her and threatened to kill her. Her twin sister, with whom she canvassed door to door for the RDNP candidate, died in XXXX 2011 from injuries sustained during the same attack. In XXXX 2014, after speaking out about these events on the radio, she was sought and her life was threatened once more. In XXXX 2014, she left Haiti for Brazil. [8] She alleges that in XXXX 2016, while returning home from a party with a friend, Brazilians attacked them and her friend was killed. Fearing for her safety, she left Brazil for the United States in XXXX 2016. She applied for asylum in the United States but did not wait for a response regarding her application before coming to Canada. Intervention before the Refugee Protection Division [9] On November 28, 2017, the Minister of Immigration, Refugees and Citizenship sent a notice of intervention asking that the appellant be excluded under Article 1E of the Convention.3 The Minister raised the following points: * There is prima facie evidence that the appellant has permanent resident status in Brazil. Her name and passport number appear on the list of 43,871 Haitian nationals who were granted permanent residence by the Brazilian government on November 11, 2015. * A stamp on page 11 of her passport indicates that she was recognized as a permanent resident (como permanente) on XXXX XXXX XXXX 2016. * The documentary evidence indicates that the rights and obligations of permanent residents are similar to those of Brazilian nationals, including rights in the areas of health care, education and employment. * The loss of status is confirmed only following an administrative proceeding during which the individual has the right [translation] "to the principles of contradictory debate and ample defence." [10] The Minister argues that it is up to the refugee protection claimant to establish that she no longer has this status in Brazil and/or that she has a well-founded fear of persecution or faces a risk of harm within the meaning of subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). He contends that the incident alleged to have occurred in Brazil does not constitute persecution. Lastly, he adds that the appellant has not rebutted through clear and convincing evidence that Brazil is unable to provide her with adequate protection. Impugned decision [11] The RPD decided that there is prima facie evidence that the appellant has permanent resident status in Brazil. However, according to the RPD, the appellant failed to discharge the burden of demonstrating that her status had been lost or could not be renewed. [12] With regard to the alleged fear in her country of residence, the RPD recognized that the situation has deteriorated in Brazil for Haitians and that there is race-related discrimination. It noted that the appellant has no proof of the attack that allegedly occurred in XXXX 2016. According to the RPD, this attack [translation] "is part of the generalized violence in Brazil." Lastly, she failed to demonstrate a serious possibility of persecution or harm under section 96 and subsection 97(1) if she were to return to Brazil. Arguments made on appeal [13] The appellant submits that the RPD erred in concluding that there is prima facie evidence that she has permanent residence in Brazil. She argues that the evidence shows that she lost her status because, on the day of the hearing, she had been outside the country for more than two years. In this case, the evidence shows that the appellant left Brazil in XXXX 2016 and that the hearing took place on January 14, 2020. [14] Regarding the RPD's conclusions that the appellant failed to demonstrate that she had lost her status or that she could not avail herself of it again, it is submitted that the documentary evidence is uncertain as to the outcome of the administrative proceeding referred to by the Minister and on which the RPD relied. [15] The appellant is challenging the RPD's conclusions that she voluntarily lost her status in Brazil and that the XXXX 2016 attack does not constitute persecution. SCOPE OF THE APPEAL [16] In this case, I will determine whether the RPD's decision is correct. ANALYSIS Was exclusion based on Article 1E of the Convention correctly applied? [17] The applicability of exclusion clause 1E must be considered on the day of the hearing before the RPD, as established in Majebi. The RPD hearing was held on January 14, 2020, and the appellant stated that she left Brazil in XXXX 2016. [18] I agree that the evidence on the record supports the conclusion that there is prima facie evidence that, before she left Brazil, the appellant had permanent resident status. Her name and passport number appear on a list of individuals who were granted permanent residence by the Brazilian government as a mere formality. Furthermore, the stamp on page 11 of the appellant's passport indicates that she was granted this status in XXXX 2016, not in XXXX 2016 as stated by the Minister in his notice of intervention. I note that the evidence on the record shows that the U.S. authorities issued a work permit in XXXX 2016.4 I disagree with the appellant's statements that this stamp is protocol. [19] Tab 14.11 of the National Documentation Package (NDP) on Haiti dated September 30, 2019, states that: "[s]ources report that permanent residence [under Law No. 6,815 of 1980, replaced by Law No. 13,445 of 2017] is valid indefinitely." [20] The RPD correctly stated that, where there is prima facie evidence of a status that confers rights and obligations similar to those of nationals, the refugee protection claimant has the burden of establishing that they do not have this status.5 [21] In this case, the RPD determined that [translation] "the refugee protection claimant did not discharge the burden of demonstrating that her permanent resident status was lost or could not be renewed." Like the Minister, the RPD notes at paragraph 14 of the decision that [translation] "according to the objective documentation, the loss of permanent resident status in Brazil is confirmed only upon completion of an administrative proceeding in which the individual has the right to a defence, which is not the case here." [22] Using the same document as the RPD6 (Tab 14.11 of the NDP), the appellant submits that this conclusion is erroneous because the rules of the administrative proceeding have not yet been determined and the outcome of the administrative proceeding is uncertain. [23] I agree with the appellant. The reasons are as follows. [24] All of the documentary evidence must be considered. The information contained at Tab 14.11 of the NDP on Haiti also indicates that: [a]ccording to the website of the Consulate General of Brazil in Montréal, which was accessed in September 2017, foreign nationals will lose their permanent resident status in Brazil [Brazil English version] 'if absent ... for a period exceeding two years'. ... according to Law No. 6,815 of 1980 [replaced by Law No. 13,445 of 2017], an individual with permanent resident status in Brazil would 'automatically' lose this status if he or she was absent from Brazil for more than two years, while Law No. 13,445 of 2017 provides that permanent resident status is lost when the individual is outside Brazil for more than two years 'without justifying [his or her] absence.' ... According to the same source, 'there is nothing [in the 2017 law] that defines what type of justification would be acceptable' for being outside Brazil that would allow permanent residents to retain their status (Lawyer 30 Jan. 2018). [25] It is correct that the new law provides that "permanent resident status can be lost only upon completion of an administrative proceeding in which the individual has the right 'to the principles of contradictory debate and ample defence.'" However, it is important to consider that "the procedures for the administrative proceeding for loss of residence [status] have yet to be established in the norm to be issued by the Ministries of Justice and Labour." Sources state that "'in principle,' there is no available recourse, but it remains to be seen whether the standards to be issued by the Ministry of Justice and the Ministry of Labour will confirm this."7 [26] This information leads me to conclude that, in this case, the RPD erred in concluding that [translation] "the refugee protection claimant did not discharge the burden of demonstrating that her permanent resident status was lost and could not be renewed." In my opinion, it is more likely than not that the status was lost. [27] In Zeng8, the Federal Court set out the factors to consider in determining whether exclusion clause 1E applies to a specific case: 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. [28] I am of the opinion that scenarios two and three apply in this case. The appellant likely had permanent resident status in Brazil, but she likely lost it. In such a situation, the various factors in Zeng must be weighed. These include, but are not limited to, the reason for the loss of status, 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. [29] In this case, it seems to me that the RPD failed to analyze all the factors in Zeng since it decided, on the day of the hearing, that the appellant had not established that she no longer had permanent resident status. As I stated earlier, given her absence from Brazil for more than two years, the documentary evidence suggests that, on the day of the hearing, it is likely that the appellant no longer had permanent resident status. In light of this, the RPD must analyze all the factors in Zeng before arriving at a conclusion concerning exclusion. CONCLUSION [30] For these reasons, I set aside the RPD's determination that XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of section 97 of the IRPA. [31] The matter is referred to the RPD for re-determination before another panel because the evidence before me is insufficient to substitute the determination that should have been made. [32] The appeal is allowed. (signed) Maria de Andrade Me Maria De Andrade March 25, 2021 Date IRB translation Original language: French 1 P-2, appellant's record, appellant's memorandum, page 6. 2 P-2, appellant's record, appellant's memorandum, page 6. 3 SPR-1, Refugee Protection Division (RPD) record, pages 120 to 123. 4 SPR-1, RPD record, page 118, Exhibit C-3. 5 Canada (Citizenship and Immigration) v. Tajdini, 2007 FC 227, at para. 36. 6 SPR-1, RPD record, National Documentation Package (NDP) on Haiti, September 30, 2019, Tab 14.11. 7 SPR-1, RPD record, NDP on Haiti, September 30, 2019, Tab 14.11; NDP on Brazil, October 31, 2019, tabs 3.4 and 3.8. 8 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-03431 RAD.25.02 (January 2020) Disponible en français 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 (January 2020) Disponible en français