MB8-02291

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 : MB8-02291 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, Quebec Appel instruit / entendu à Date of decision January 10, 2019 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Walid Ayadi 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 the decision of the Refugee Protection Division (RPD) dated November 29, 2017. DETERMINATION OF THE APPEAL [2] The RAD dismisses the appeal and confirms the determination of the RPD, namely, that the appellant is excluded because he is a person referred to in Article 1E of the United Nations Convention Relating to the Status of Refugees (the Convention) and is neither a Convention refugee nor a person in need of protection pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA). OVERVIEW AND FACTUAL BACKGROUND OF THE APPEAL [3] The appellant alleges that he was threatened following the arrest of a youth in his neighbourhood who had stabbed him in the right arm during an attempted robbery on XXXX XXXX, 2013. [4] On XXXX XXXX, 2013, he left Haiti and travelled to Ecuador and then Brazil, where on XXXX XXXX, 2014, he obtained residence authorization valid until XXXX XXXX, 2024. In XXXX 2016, he left Brazil for the United States, before arriving in Canada and claiming refugee protection in August 2017. [5] The Minister of Immigration, Refugees and Citizenship (the Minister) did not respond to the RPD's invitation to intervene regarding the possibility that the appellant is a person referred to in Article 1E of the Convention. [6] The RPD determined that: - the appellant is an excluded person because he is a person referred to in Article 1E of the Convention; - he is neither a Convention refugee nor a person in need of protection pursuant to section 98 of the IRPA. [7] The appellant submits that the RPD's decision is wrong in fact and in law in that: - residency status in Brazil does not confer the same rights on foreign residents as it does on citizens; - the so-called permanent nature of the status afforded to Haitian nationals is not permanent as it does not meet the criteria set out in Shamlou;1 - he was poorly represented and prepared for the hearing, where the debate basically centred on the exclusion under Article 1E of the Convention; - he has a fear of persecution as a Haitian in Brazil. [8] The appellant's written statement indicates that he is not relying on any evidence referred to in subsection 110(4) of the IRPA. However, under paragraph 3(3)(e) of the Refugee Appeal Division Rules, he is submitting five newspaper articles that were not included in the record before the RPD. [9] Additional documentation taken from the National Documentation Package (NDP) on Brazil, dated April 30, 2018, and the NDP on Haiti, dated July 20, 2018, that were not included in the record before the RPD was also submitted to the RAD. Role of the RAD [10] The RAD reviews RPD decisions after carrying out its own analysis of the record by applying the correctness standard of review. The exception to this rule concerns situations where the RPD enjoys a meaningful advantage in assessing the credibility or weight to be given to the oral evidence it hears, in which case the RAD may show a degree of deference.2 [11] I will apply the correctness standard while carrying out an independent analysis of all of the evidence on the record and listening to the recording of the hearing. ANALYSIS [12] The determinative issues are as follows: - the admissibility of the appellant's submissions, namely, five newspaper articles and additional information taken from the NDP on Brazil, dated April 30, 2018, and the NDP on Haiti, dated July 20, 2018; - the nature of the status afforded to the appellant in Brazil; - the risk of harm he would face if he were to return to Brazil. i) Admissibility of the five newspaper articles [13] While having stated that he did not intend to rely on any evidence referred to in subsection 110(4) of the IRPA, the appellant still submitted three newspaper articles under paragraph 3(3)(e) of the Refugee Appeal Division Rules and two other articles with his additional submissions from November 2, 2018. [14] The three articles included in his memorandum, all available online, are as follows: - Haitian Migrants Pouring Into Brazil Don't Find A Warm Welcome, The HuffPost, August 22, 2016; - La situation des Migrants Haïtiens se complique au Bresil [the situation of Haitian migrants gets complicated in Brazil], Scoop FM, 107.7, December 1, 2017 (article originally published on September 9, 2015, by the Groupe d'Appui aux Rapatriés et Réfugiés [support group for repatriates and refugees]). - Dans Le Sud Du Brésil, Les Illusions Perdues Des Immigrés Haïtiens [in southern Brazil, the lost illusions of Haitian immigrants], Monde Académie Internationale, May 27, 2014. [15] The two other additional articles submitted, also available online, are as follows: - L'assassinat à Rio de Marielle Franco, élue locale et militante contre les violences policières, émeut le Brésil [Brazil rocked by the the murder in Rio of Marielle Franco, local elected official and activist against police violence], Le Monde, March 16, 2018; - Le Brésil sous le choc après l'assassinat d'une élue noire [Brazil in shock following the assassination of a black elected official], Le Devoir, March 17, 2018 [16] The evidence must meet one of the criteria set out in subsection 110(4) of the IRPA. The last two articles must also meet the criteria under rule 29 as they were submitted after the appeal was perfected. The first step is to verify that the evidence: a) arose after the rejection of the refugee protection claim; or b) was not reasonably available; or c) that the person could not reasonably have been expected to have presented, at the time of the rejection. If any of the criteria are met, it is not necessary to consider the evidence or continue with the analysis.3 [17] First, there is nothing new about these articles within the meaning of subsection 110(4) of the IRPA. The three submitted with the appellant's memorandum have existed since August 22, 2016 (date of the most recent of the publications), more than a year before the hearing. [18] Being online articles, they were all readily available. Given the claims of difficulties encountered in Brazil, one would expect them to have been submitted into evidence at the RPD hearing. [19] The two additional articles do not comply with rule 29. Despite this, they are merely reporting on an incident with the aim of showing the violence and corruption of police forces in Brazil. The situation described existed when before the RPD and the reality is already known and abundantly documented. There is no need to add to it. [20] In light of the foregoing, I cannot accept any of them. ii) Admissibility of the submissions taken from the National Documentation Package on Brazil [21] Tabs 2.1 and 2.2 of the NDP on Brazil, submitted by the appellant, contain no additional elements of interest for his record, essentially reiterating what was in Tab 2.2 of the NDP on Brazil dated March 31, 2017. [22] As for Tabs 7.2, 9.3, 13.1 and 13.2, they were already in the NDP on Brazil, dated March 31, 2017, and do not constitute new evidence. [23] However, as part of the documentary evidence, their content remains admissible. iii) Admissibility of the submissions taken from the National Documentation Package on Haiti [25] Tab 14.11 of the NDP on Haiti dated July 20, 2018, expands on tabs that already existed (such as Tab 3.4 of the NDP on Brazil dated March 31, 2017). As part of the documentary evidence, Tab 14.11 remains admissible. iv) The nature of the appellant's status in Brazil a. Rights and obligations inherent to status [24] The appellant argues that the RPD erred in considering that he is a permanent resident of Brazil with the same rights and obligations as its citizens. [25] He submits that his status does not satisfy the five criteria established by case law to determine whether a person has the same rights as a national, namely: a) the right to return to the country of residence; b) the right to work freely without restrictions; c) the right to study; d) full access to social services in the country of residence; e) the right to return to the third country of residence for an indeterminate period. [26] At the hearing, the appellant testified at length about the rights associated with his Brazilian card, Exhibit P-1. He testified about his right to work, to study, to access social services, to move freely throughout the various areas, as well as enter and exit. [27] The appellant submits that the rights he has are not substantially similar to those of nationals. As a result, despite the guarantees provided by Article 7 of the Constitution of Brazil governing the rights of workers, Haitians would never enjoy protections such as those concerning dismissal, minimum wage and working hours. Nor would he have the right to nationality, to the vote or to military service. [28] He testified that he had trouble finding work after 10 months, when the country's presidency changed. However, according to his testimony to the RPD, this situation was the result of a general economic slowdown in the country, which led to the closing of many companies. Consequently, everyone, nationals and permanent residents alike, were similarly affected. The Brazilian Constitution guarantees immigrants and Brazilian citizens the same fundamental rights with respect to health, education, work, leisure, security, social security, protection of motherhood and childhood and assistance to the destitute. These rights are substantially the same as those provided to Brazilian citizens. The RPD's finding that the appellant's rights are the same as those of Brazilian citizens is correct. b. Permanent nature of status [29] The appellant also argued that, despite its title, there is nothing permanent about the nature of residency. [30] Relying on Tab 4.3 of the NDP on Brazil and on Tab 3.13 of the NDP on Haiti, he submits that the validity of the visa is limited to five years and should be renewed before it expires. Furthermore, it will not be automatically renewed and status would be lost in the event of an absence from Brazil of two years not justified by university studies, professional training, research activity or professional activity for the Brazilian government. [31] However, Response to Information Request no. ZZZ105986.FE, dated October 3, 2017, found in Tab 3.12 of the NDP on Haiti, dated October 20, 2017, refers to a ministerial act from the Ministry of Justice and the Ministry of Labour and Social Security that includes a list of 43,781 Haitian nationals who were granted permanent residence in Brazil. A review of this list of foreign nationals shows that the appellant's name is XXXX XXXX XXXX on the list. [32] On page XXXX of that same document, the Norwest Immigrant Rights Project (NWIRP), an organization that defends the rights of immigrants in partnership with the Institute for Justice & Democracy in Haiti (IJDH), a non-profit organization in the United States, explains that in accordance with article 18 of Law No. 6,815, Haitians who want to apply for permanent residency must go to the Federal Police Department before the expiration of their five-year visa and prove that they are working and living in Brazil. [33] Again in the same section of the NDP and according to the IJDH, the NWIRP and the Chamber of Commerce for Brazil (AMCHAM): - the validity period of permanent residence is indeterminate; - it must be re-issued periodically, currently at nine-year intervals; - re-issue of permanent residence is automatic and there is no requirement for re-application or re-qualification. [34] It appears from Exhibit P-1, Cedula de identitade de estraneiro, that the appellant's identity card is valid for a period of nine years. [35] The appellant submits that his status in Brazil is not the same as that of a citizen because it is conditional on his residing in Brazil and not being absent for more than two years. He also submits that he cannot renew his expired residence card since his absence from the country is not one that is identified in the law and thus prevents him from satisfying the criteria for renewal. Considering the principles established by the Federal Court of Appeal in Majebi,4 an assessment of exclusion under Article 1E is to be made at the time of the hearing before the Refugee Protection Division. [36] Having to meet the requirements in order to maintain permanent residence does not necessarily confer on him a conditional status. Maintaining it requires sustained efforts that demonstrate the holder's continuing interest in residing permanently in the host country. Leaving the country for longer than a prescribed period without a legislatively recognized reason results in the forfeiture of the right that was granted and demonstrates the holder's lack of interest in maintaining it. [37] The ministerial order confirms that the appellant had permanent status in Brazil that granted him rights similar to those enjoyed by Brazilian nationals. His testimony indicates an understanding of the associated rights and obligations and the enjoyment thereof. [38] Therefore, I find that the appellant enjoyed permanent status in Brazil up to the time of the RPD decision. v) The risk of harm the appellant would face if he were to return to Brazil [39] The appellant submits that there is a risk of harm if he has to return to Brazil, arguing essentially that there is systemic racism and discrimination against Haitian nationals. [40] When the RPD asked whether he feared anything if he were to return to Brazil, the appellant's unequivocal response was a monosyllabic [translation] "No." [41] At no time, whether when writing his account or during his testimony, did the appellant offer any evidence that, on a balance of probabilities, would suggest that he faces a risk of harm. [42] Furthermore, although he had ample opportunity to do so, at no time did he find it necessary to amend his refugee protection claim to include Brazil as a country where he fears persecution. There are no amendments or testimony regarding similar events experienced that would make it possible to consider the persecution suffered. The appellant did not demonstrate a profile that would lead to a conclusion that he experienced systemic discrimination or racism. [43] Not all discriminatory acts are persecution. According to the United Nations 1951 Convention Relating to the Status of Refugees, discrimination amounts to persecution when the measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, such as serious restrictions on the right to earn a livelihood, the right to practise religion, or access to normally available educational facilities.5 [44] The appellant confirmed the rights he enjoyed as a permanent resident. The evidence shows that he worked for two years, held two jobs, had living accommodations and knew he was entitled to medical care. [45] Considering that: a. the appellant had permanent resident status in Brazil that gave him substantially the same rights as Brazilian nationals; b. the actions, which he claims constitute a risk of harm in the event of his return, are the same ones he had always experienced and, in a better economic context, would have been willing to continue to live with; c. the events reported by the appellant, while they may be discrimination, are not sufficient cumulatively to amount to persecution; d. there is no serious possibility that he would be persecuted in Brazil on a Convention ground; e. he failed to establish, on a balance of probabilities, that, if he were to return to Brazil, he would be subjected personally to a danger of torture or to a risk to his life or to a risk of cruel and unusual treatment or punishment; I find that the RPD decision is correct. [46] In closing, counsel for the appellant also raised as an additional argument that he had been poorly represented and prepared for the hearing, where the debate centred on the exclusion under Article 1E of the Convention. [47] A serious allegation, its examination would require that counsel and his client comply with the obligations imposed under the Practice Notice - Allegations Against Former Counsel. [48] The RAD informed counsel of this notice to ensure compliance and received confirmation from counsel that the obligations under the Practice Notice had not been complied with and, despite this, the panel notes that counsel still has not complied. As counsel failed to comply with the Practice Notice, former counsel did not have the opportunity to respond. Therefore, I will not examine the argument put forth by the appellant. CONCLUSION [49] The RAD dismisses the appeal and confirms the determination of the RPD that the appellant is a person excluded under Article 1E of the Convention and is neither a refugee nor a person in need of protection pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA). Richard Sheitoyan Me Richard Sheitoyan January 10, 2019 Date IRB translation Original language: French 1 Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 103 FTR 241 (FCTD). 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Raza v. M.C.I., 2007 FCA 385 (CanLII). 4 Majebi v. Canada (Citizenship and Immigration), 2016 FCA 274 (CanLII). 5 United Nations 1951 Convention Relating to the Status of Refugees, July 28, 1951, and Noel v. Canada (Citizenship and Immigration), 2018 FC 1062, para. 29. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-02291 RAD.25.02 (September 18, 2018) Disponible en français 12 RAD.25.02 (September 18, 2018) Disponible en français