MB9-25324

RAD File No. / No de dossier de la SAR : MB9-25324 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, QC Appel instruit / entendu à Date of decision September 11, 2020 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Jean-Marie Hercule 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 INTRODUCTION [1] Mr. XXXX, you are a Haitian citizen and you claim that you fear being persecuted in that country by reason of your political opinion expressed in 2011 prior to going to Brazil. You also stated that you left Brazil in 2016 because of racist and aggressive behaviour toward Haitians, before going to the United States of America, then to Canada.1 [2] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened in your refugee protection claim and submitted that you claimed to have resident status in Brazil, the official journal of Brazil indicates that you obtained permanent residence in that country in XXXX 2012, you did not demonstrate that you had lost this status, and you would not have left the protection provided to you there if you feared being harmed in Haiti.2 [3] After analyzing all of the evidence, the Refugee Protection Division (RPD) determined that under Article 1E of the Refugee Convention3 (the Convention) and section 98 of the Immigration and Refugee Protection Act (IRPA), you are neither a refugee nor a person in need of protection.4 [4] On appeal, you argue that the RPD erred. First, because even though you had residence in Brazil, you automatically lost this status after spending two years outside the country. Second, because, with respect to your credibility regarding your fear in Haiti, the RPD was overzealous in conducting a microscopic analysis of your testimony and overemphasized elements that are not very important, as you were living in one of the country's dangerous neighbourhoods and your life would be in danger there if you returned.5 [5] After analyzing your record, I conclude that the RPD did not err as you allege. [6] In light of this conclusion, your appeal is dismissed. ANALYSIS OF THE APPEAL [7] The role of the Refugee Appeal Division (RAD) is not to carry out a de novo consideration of refugee protection claims, but to determine whether the RPD erred as alleged.6 I conducted an independent analysis of the record in order to draw my own conclusions,7 particularly by listening to the recording of the RPD hearing8 and reviewing the documentary evidence. In my opinion, the correctness standard of review must be applied.9 Your exclusion [8] In its decision, the RPD states that you acknowledged acquiring permanent residence and that, according to the documentary evidence, you had rights similar to those of Brazilian citizens.10 [9] After acknowledging that, on the day of hearing held before it, you had been outside Brazil for a period of more than two years and that you had therefore lost your permanent resident status in that country, it continued its analysis by considering the tests set out by the Federal Court of Appeal in Zeng.11 [10] The RPD ultimately found that you did not demonstrate that the loss of your permanent resident status in Brazil was involuntary, and it gave significant weight to this factor.12 It also found that the documentary evidence was not conclusive regarding your possibility of returning to Brazil and having administrative recourse to maintain your permanent resident status there, and it gave little weight to this test.13 [11] With respect to your exclusion, you argue that the RPD erred in fact because, after spending two years outside Brazil, you had automatically lost your resident status there and you would have a hard time returning there to assert your rights.14 [12] Based on my analysis of your record, the RPD did not err in fact. Rather, it acknowledged that you had lost your permanent resident status in Brazil, but it continued its analysis and, after considering the documentary evidence about the administrative process available to you,15 it ultimately found that you fall under the exclusion clause.16 [13] According to the case law, the exclusion continues to apply despite the fact that you allowed your permanent resident status in Brazil to expire after your arrival in Canada.17 In your case, when you signed your Basis of Claim Form (BOC Form) on September 28, 2017, you still had permanent resident status in Brazil, whereas according to your statements, you had left that country on XXXX XXXX XXXX 2016. While you could have lost this status sometime later, the fact remains that, according to the case law, refugee protection claimants who arrive in Canada with status akin to nationality in a safe third country and who lose that status as a result of their own actions or inactions ought to be excluded under Article 1E of the Refugee Convention, which is incorporated in section 98 of the IRPA.18 [14] Based on my own analysis of your record, the RPD did indeed weigh the various factors to consider, including the voluntary or involuntary loss of your permanent resident status in Brazil, whether you could return to the third country, the risk you would face in your country of origin, Haiti, Canada's international obligations, and any other relevant facts.19 In assessing your refugee protection claim with an open mind, it had to apply the relevant laws. Its conclusion was that the exclusion clause applied to you. [15] In your memorandum, you do not raise any concerns with respect to these issues, limiting yourself to arguing that the RPD erred in fact by not acknowledging that you had lost your permanent resident status in Brazil and that you would have a difficult time returning there to assert your rights. However, when appealing to the RAD, you must provide full and detailed submissions regarding the errors that are the grounds of the appeal. You must identify where the errors are located in the RPD's decision or in the recording of the RPD hearing.20 Since you failed to do so, you cannot fault me for not having considered or addressed arguments that were not raised.21 One thing is certain, based on my own analysis of your record, the RPD did indeed weigh the various factors to consider and it ultimately determined that the exclusion had to apply. Your credibility regarding your fear in Haiti [16] When refugee protection claimants swear to the truth of certain allegations, they are presumed to be telling the truth. However, this presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is not satisfied with the explanation provided for those inconsistencies.22 The RPD may draw negative inferences based on implausibilities, inconsistencies or omissions. The entirety of the evidence must be considered.23 Moreover, the accumulation of contradictions and omissions can be fatal to a refugee protection claimant's credibility.24 [17] After analyzing your testimony and your documentary evidence, the RPD identified omissions and contradictions, it considered your explanations, but did not find them satisfactory. It ultimately concluded that you failed to establish the truthfulness of your allegations.25 [18] You argue in your memorandum that the RPD erred in fact because you were stressed and may have forgotten certain details of your story. You also argue that the RPD was overzealous in conducting a microscopic examination of your testimony and overemphasized elements that are not very important. You also submit that there is a climate of insecurity in Port-au-Prince and that even police officers, who are supposed to protect lives and property, have for months been the target of criminals. You are of the opinion that this means you should be given the benefit of the doubt as criminals who are actively operating in Haiti could easily attack you.26 [19] With all due respect, I find your arguments to be unfounded. [20] Based on my own analysis of the record, failing to include in your BOC Form that supporters of a political party other than your own came to your home to attack you at approximately XXXX XXXX XXXX p.m. on XXXX XXXX, 2011, is not a minor detail. It is clear that this information is not in your written account.27 It is also clear that the RPD asked you to explain this omission. You responded that it was the person who helped you complete your form who decided that you should not make a big deal about it. The RPD asked you to explain why, at the start of the hearing, you stated that the information in your BOC Form was true, complete and up to date. You responded that this was the first time you had filed a refugee protection claim and appeared at a hearing.28 In its decision, the RPD considered that this omission was significant and that your explanation was not satisfactory.29 [21] Based on my own analysis of your record, the RPD did not err. When you completed and signed your BOC Form, you were represented by a lawyer who helped you fill out the form.30 By signing your BOC Form, you confirmed that the information provided in this form was complete, true and correct, that you are able to read French and that you had fully read and understood the content of the form and all the documents appended to it. By signing your BOC Form, you understood that your declaration had the same force as if it had been made under oath.31 This means that your explanation contradicts what you declared when you completed and signed your BOC Form and that it is therefore not acceptable. [22] The Refugee Protection Division Rules specify the declarations that must be included in the BOC Form32 and how changes and additions can be made to the form.33 Guideline 7 states that the claimant is responsible for making sure that the BOC Form was interpreted to them before the hearing and that at the beginning of the hearing, the member will ask the claimant to confirm that the interpretation was done.34 In your case, there was no interpretation since you stated that you understood French and that your BOC Form was written in that language. That said, after being sworn in,35 you made a few changes to the IMM 0008 immigration form verbally, then you stated that there were no other changes to be made, that this was indeed your signature on your BOC Form and that it was true, up to date and complete.36 It is clear to me that your explanation contradicts your declaration at the beginning of the hearing. [23] I am also of the opinion that the contradiction during your testimony about the individuals who attacked you at the polling centre is also not a minor detail. The same is true for the omission in the registry minutes of the names of two individuals who, according to your testimony, allegedly attacked you at the polling centre on XXXX XXXX, 2011. Lastly, failing to state in your BOC Form that, in 2014, people came into your family's yard and discussed politics, and that your cousin was then allegedly shot in the foot, is also not a minor detail. In short, I am of the opinion that the RPD did not err in finding that these omissions and contradictions undermined your credibility and that your explanations on the matter were not satisfactory. [24] With respect to the prevailing insecurity in Haiti, the documentary evidence in this regard pertains to all Haitians. You cannot establish a personalized risk within the meaning of paragraph 97(1)(b) of the IRPA by simply referring to this documentary evidence.37 The onus is on the person who is applying for refugee protection to establish that there is a personalized risk should they return to their country of origin. The risk of random crime indiscriminately and generally faced by everyone living in that country does not meet the standards of this definition.38 CONCLUSION [25] For these reasons, I confirm the RPD's determination that you are a person described in Article 1E of the Refugee Convention and that you are neither a refugee nor a person in need of protection. [26] Your appeal is dismissed. (Signed) Alain Bissonnette Me Alain Bissonnette September 11, 2020 Date IRB translation Original language: French 1 Your Basis of Claim Form (BOC Form) is reproduced at pages 18 to 45, and the documents you provided as evidence before the Refugee Protection Division (RPD) are reproduced at pages 135 to 147 of the scanned version of the RPD record. 2 His notice of intervention and the documents he provided as evidence are reproduced at pages 151 to 163 of the scanned version of the RPD record. 3 As referred to in subsection 2(1) of the Immigration and Refugee Protection Act (IRPA). Article 1E of the Refugee Convention is set out in the schedule to the IRPA. 4 RPD Reasons and Decision, September 17, 2019, pages 5 to 17 of the scanned version of the RPD record. 5 Your memorandum, November 22, 2019, pages 20 to 25 of the scanned version of the appeal record. 6 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 7 Gomez v. Canada (Minister of Citizenship and Immigration), No. IMM-2283-19, Pamel, April 9, 2020; 2020 FC 506, paragraphs 48 to 52. 8 Recording of the RPD hearing held on August 19, 2019, 00:01 to 02:36:39 (1 second to 2 hours, 36 minutes and 39 seconds). 9 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 10 RPD Reasons and Decision, supra, endnote 3, paragraphs 16 and 17. 11 Ibid., paragraphs 18 to 21. 12 Ibid., paragraphs 22 to 27. 13 Ibid., paragraphs 28 and 29. 14 Your memorandum, supra, endnote 5, paragraph 8. 15 RPD Reasons and Decision, supra, endnote 4, paragraphs 28 and 29. 16 Ibid., paragraph 44. 17 Joseph v. Canada (Minister of Citizenship and Immigration), No. IMM-5365-19, Grammond, August 19, 2020; 2020 FC 839, paragraph 5. Jean-Pierre v. Canada (Minister of Citizenship and Immigration), No. IMM-623-19, Pamel, January 27, 2020; 2020 FC 136, paragraph 24. 18 Su v. Canada (Minister of Citizenship and Immigration), No. IMM-5419-18, Gascon, August 7, 2019; 2019 FC 1052, paragraphs 22, 28 and 29. 19 Canada (Minister of Citizenship and Immigration) v. Zeng, No. A-275-09, Noël, Layden-Stevenson and Stratas, May 10, 2010; 2010 FCA 118, paragraph 28. 20 Refugee Appeal Division Rules, SOR/2012-257, paragraph 3(3)(g). 21 Cruz v. Canada (Minister of Citizenship and Immigration), No. IMM-2076-19, Gleeson, January 9, 2020; 2020 FC 22, paragraphs 30 to 33. 22 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 23 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 24 Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, paragraph 42. 25 RPD Reasons and Decision, supra, endnote 4, paragraphs 30 to 42. 26 Your memorandum, supra, endnote 5, paragraphs 9 to 17. 27 BOC Form, page 42 of the scanned version of the RPD record. 28 Recording of the hearing, supra, endnote 8, 01:25:00 to 01:32:30. 29 RPD Reasons and Decision, supra, endnote 4, paragraphs 31, 32 and 33. 30 BOC Form, page 44 of the scanned version of the RPD record. 31 Ibid., page 45 of the scanned version of the RPD record. 32 Refugee Protection Division Rules, SOR/2012-256, subrule 6(1). 33 Ibid., subrule 9(1). 34 Immigration and Refugee Board of Canada (IRB), Chairperson's Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division. Effective date: December 1, 2003, amended on December 15, 2012. These Guidelines can be accessed on the IRB's website. 35 Recording of the hearing, supra, endnote 8, 01:55 to 02:30. 36 Ibid., 04:20 to 08:15. 37 Jean v. Canada (Minister of Citizenship and Immigration), No. IMM-5860-09, Shore, June 22, 2010; 2010 FC 674, paragraphs 26 to 33. 38 Michel-Querette v. Canada (Minister of Citizenship and Immigration), No. IMM-5919-18, Pentney, June 18, 2019; 2019 FC 827, paragraph 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-25324 RAD.25.02 (January 2020) Disponible en français 8 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