MB8-08792

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 : MB8-08792 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 à Date of decision January 10, 2019 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Patrizia Ruscio Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX, is a citizen of Haiti. He left Haiti on XXXX XXXX XXXX 2013, because he feared for his life. He lived legally in Brazil from XXXX XXXX, 2013, until XXXX XXXX XXXX 2016. The appellant states that he left Brazil owing to the threats he allegedly received and the discrimination experienced by Haitians. He undertook a long journey which led him to Canada on XXXX XXXX, 2017. [2] The Minister of Immigration, Refugees and Citizenship (the Minister) requested that the refugee protection claim be rejected on the ground that the appellant has permanent resident status in Brazil and that, for this reason, he cannot avail himself of the protection of Canada. [3] The Refugee Protection Division (RPD) found that there is prima facie evidence that the appellant has such status in Brazil. According to the RPD, the appellant did not discharge his burden of establishing that he does not have permanent resident status. Having such status, he has the same rights and obligations as Brazilian nationals. He did not establish that there is a serious possibility of persecution for him in Brazil owing to his Haitian origins or the colour of his skin. [4] Mr. XXXX is appealing that decision and maintains that the RPD's decision is erroneous. In summary, he states that the decision is based on irrelevant factors and that its findings, according to which the violence and discrimination he faced do not amount to persecution, are erroneous. [5] The RPD made the appropriate decision. The Minister submitted prima facie evidence that the appellant has permanent residence in Brazil. The appellant did not meet his burden of proof to demonstrate, on a balance of probabilities, that he does not have such status. [6] Moreover, the assessment of prospective risk if he were to return to Brazil does not make it possible to find that there is a serious possibility of persecution on one of the Convention grounds or that it is probable that the appellant would face one of the risks set out in section 97 of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [7] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination that the appellant, XXXX XXXX, is neither a Convention refugee nor a person in need of protection. ISSUE [8] As part of this appeal, the RAD must determine whether the RPD erred in its assessment of the appellant's prospective risk in Brazil. ANALYSIS [9] The appellant is not challenging the RPD's findings that he had permanent resident status in Brazil on the day of the hearing. For the following reasons, I am of the opinion that the RPD's findings on this matter are correct. [10] As the Minister stated, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. A stamp on page 5 of the appellant's passport indicates that he was registered as permanent with the Brazilian federal police in XXXX 2016.1 [11] Given such evidence, the refugee protection claimant had the burden of establishing that he could not avail himself of this status or that he could not return to Brazil.2 The appellant's status must be examined as it was on the day of the hearing before the RPD.3 [12] The appellant states that he left Brazil on XXXX XXXX XXXX 2016. He was heard by the RPD on February 19, 2018. Article 51 of the Act states that a foreigner registered as permanent loses their status if they are absent from the country for more than two years. Accordingly, on the day of the hearing, he had not been absent from Brazil for more than two years. His testimony that he does not know whether he did or did not have permanent status is not sufficient evidence to conclude that he does not have permanent resident status in Brazil.4 [13] The documentary evidence indicates that foreigners who live in Brazil enjoy substantially the same rights and obligations as nationals.5 The right to return, the right to work freely without restriction, the right to study, and access to social and health services are the rights that must be protected.6 This information was not questioned by the appellant. Prospective risk [14] On the Basis of Claim Form (BOC Form), the appellant indicated that he worked as a XXXX in a XXXX XXXX. Some [translation] "white" employees did not like being managed by a "black Haitian." He also stated that the discontent with regard to Haitians was getting worse because of the job shortage. [15] At the hearing, he stated the following. Starting in 2014,7 he encountered problems with someone named XXXX, an employee at the XXXX where he worked. When he smoked and drank, this man had trouble following the instructions for XXXX XXXX. He also did not like taking orders from a [translation] "black Haitian." Because he did not follow company rules, he was suspended from work on a number of occasions for several days. This employee, a thug, did prison time owing to a problem he had had with a Brazilian. This worker threatened to kill him. Owing to his fear, the appellant did not complain to the authorities.8 [16] He states that he left Brazil because he also fears Brazilians who blame Haitians for their problems. The appellant stated the he would not be able to live safely in Brazil. [17] The RPD emphasized the documentary evidence which indicates that Haitians are not immune to incidents of racism or discrimination that exist in Brazilian society. However, taking into account the specific facts of the case and because the appellant did not report to the police authorities the threats he states he received from his work colleague, the RPD found that the appellant did not establish a serious possibility of persecution if he were to return to Brazil. [18] In my opinion, the appellant did not establish that this RPD finding is erroneous. [19] The documentary evidence reports on problems of racism and discrimination in Brazilian society with regard to Haitians and black people. The Country Report on Human Rights Practices states: The law prohibits racial discrimination, specifically the denial of public or private facilities, employment, or housing, to anyone based on race. The law also prohibits the incitement of racial discrimination or prejudice and the dissemination of racially offensive symbols and epithets, and it stipulates prison terms for such acts. The 2010 census reported that for the first time white persons constituted less than half the population; approximately 52 percent of the population identified themselves as belonging to categories other than white. Despite this high representation within the general population, darker-skinned citizens, particularly Afro-Brazilians, frequently encountered discrimination. Afro-Brazilians were underrepresented in the government, professional positions, and middle and upper classes. They experienced a higher rate of unemployment and earned average wages below those of whites in similar positions. There was also a sizeable education gap. Afro-Brazilians were disproportionately affected by crime; according to one congressional investigative report, black men were 3.7 times more likely to be homicide victims than their white counterparts.9 [20] Paragraph 54 of the UNHCR Handbook states: Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.10 [21] Brazil is a diverse and ethnically mixed country. In my opinion, the situation of Afro-Brazilians is complex, and each case should be evaluated taking into account its particular context and the reasons why some people encounter problems. [22] Professor James C. Hathaway and the courts11 have defined persecution as "sustained or systemic violation of basic human rights demonstrative of a failure of state protection." [23] The evidence on the record demonstrates that the appellant was able to make a living in Brazil. He had access to academic training that enabled him to become a XXXX in a company. His wife and his son still live in Brazil. [24] If the appellant encountered problems in the context of his work with an employee who also caused problems for others, he did not bring to the attention of the authorities the threats that he states he received. The evidence showed that this individual was imprisoned because he had a conflict with a Brazilian. [25] I have considered the appellant's statements, according to which people sometimes step on him without apologizing when he gets on a bus. However, even if viewed cumulatively, I am of the opinion that the appellant did not establish "sustained or systemic violation of basic human rights demonstrative of a failure of state protection" or that there is a serious possibility that his fundamental rights would not be recognized if he were to return. CONCLUSION [26] For these reasons, I confirm the RPD's decision that the appellant, XXXX XXXX, is referred to in Article 1E of the Convention because he has permanent resident status in Brazil and, as such, he did not establish a serious possibility of persecution or that it is likely that his life would be subject to one of the risks set out in section 97 of the IRPA. [27] Accordingly, he is neither a "Convention refugee" nor a "person in need of protection" pursuant to section 97 of the IRPA. [28] The appeal is dismissed. Maria De Andrade Me Maria De Andrade January 10, 2019 Date IRB translation Original language: French 1 RPD record, page 85. 2 Shahpari, Khadijeh v. M.C.I. (F.C.T.D., No. IMM-2327-97), Rothstein, April 3, 1998. 3 Canada (Minister of Citizenship and Immigration) v. Zeng; 2010 FCA 118. 4 CD of the hearing, 27:51 to 33:00. 5 National Documentation Package (NDP) on Brazil, March 30, 2017, Tab 3.4. 6 Shamlou v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1537. Kanesharan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No 1278. 7 CD of the hearing, 42:05. 8 CD of the hearing, 42:05 to 42:36. 9 Supra, footnote 5, Tab 2.1, Brazil. Country Reports on Human Rights Practices for 2016, March 3, 2017. 10 1951 United Nations Convention Relating to the Status of Refugees, July 28, 1951, paras. 51 to 55. 11 Ranjba v. Canada (Minister of Citizenship and Immigration) 2003 FC 637; Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (C.A.); and Sefa v. Canada (Citizenship and Immigration), 2010 FC 1190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-08792 7 RAD.25.02 (February 7, 2014) Disponible en français