MB8-07396

RAD File No. / No de dossier de la SAR : MB8-07396 MB8-07397 Private Proceeding / Huis clos Reasons and Decision ?Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision February 8, 2019 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person(s) who is(are) the subject(s) of the appeal Claudette Menghile Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION OVERVIEW [1] The appellant, XXXX XXXX, is a citizen of Haiti and a permanent resident of Brazil. Her minor son, XXXX XXXX XXXX XXXX XXXX, is a citizen of Brazil. [2] The appellant is appealing against a decision of the Refugee Protection Division (RPD) from March 14, 2018, rejecting their refugee protection claims because she is excluded under Article 1E of the Convention Relating to the Status of Refugees (Convention), in accordance with section 98 of the Immigration and Refugee Protection Act (IRPA), and because she failed to establish that there is, for her and her son, a serious possibility of persecution or that their lives would likely be subjected to one of risks set out in section 97 of the IRPA if they were to return to Brazil. [3] The appellant submits that the RPD erred in concluding that she had permanent residence in Brazil. She is asking the Refugee Appeal Division (RAD) to allow the appeal, set aside the determination of the RPD, refer the matter to the RPD for a new hearing and make any other directions it considers appropriate. [4] The RAD confirms the designation of the appellant as the representative of her minor son. DETERMINATION OF THE APPEAL [5] Under paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX and XXXX XXXX XXXX XXXX XXXX are not Convention refugees under section 96 of the IRPA or persons in need of protection under section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] In her Basis of Claim Form (BOC Form),1 the appellant alleges that she left Haiti for Brazil on XXXX XXXX, 2013, then returned to Haiti on XXXX XXXX, 2016. On XXXX XXXX, 2016, individuals entered her house to rape her but fled following noise made by her neighbours. The appellant then filed a complaint with the peace court. In May 2016, while on her way home, three men tried to kidnap her, blaming her for having filed a complaint against them. Following this attempt, she hid with her husband until they left for the United States on XXXX XXXX, 2016. When they arrived in the United States, her husband was deported to Haiti, while the appellant made it to Canada with her son where they claimed refugee protection. In the event of her return to Haiti, the appellant fears for her safety as she is still being sought and threatened with physical retaliation by criminals. [8] Canada's Minister of Public Safety (the Minister) submitted a notice of intervention2 asking the RPD to determine that, as a permanent resident of Brazil, the appellant is a person described in Article 1E of the Convention and therefore cannot be a refugee or a person in need of protection pursuant to section 98 of the IRPA. [9] According to the Minister, the appellant's passport contains a VIPER visa valid for five years and issued on XXXX XXXX, 2014, in Port-au-Prince, as well as a stamp confirming her valid permanent residence as of XXXX XXXX, 2013. Given that her absence from Brazil has not been more than two years, the appellant was still a permanent resident of Brazil at the time of the hearing before the RPD. [10] According to the appellant, the VIPER visa is conditional and is valid for only five years, after which permanent residence has to be issued again. According to her reasoning, if permanent residence has to be issued again, it is not permanent-permanent would mean only being issued once. [11] Next, the appellant submits that the RPD should have analyzed the appellants' risk of returning to Haiti rather than to Brazil because the appellant is not a permanent resident of Brazil. She alleges that the failure to do so constitutes a refusal to exercise its jurisdiction. [12] The appellant is asking the RAD to allow the appeal, set aside the determination of the RPD, refer the matter to the RPD for a new hearing and make any other directions it considers appropriate. THE REFUGEE APPEAL DIVISION'S ROLE [13] According to the case law, the RAD reviews RPD decisions by applying the correctness standard of review after carrying out an indepenedent analysis of the record. The RAD may show deference to the RPD's analysis regarding the credibility of oral evidence if it finds that the RPD benefitted from a meaningful advantage in the circumstances.3 Should I find that deference is warranted, I will explain how the RPD enjoyed a meaningful advantage in order to arrive at the finding in question. ANALYSIS [14] After having conducted my own analysis of the evidence on the record, I am of the opinion that the appellants' arguments are not founded and that the RPD's decision is correct. Here is why. [15] To determine the applicability of the exclusion clause in Article 1E of the Convention, the RAD must determine whether, on the date of the hearing, the appellant has status that is substantially similar to that of the country's nationals.4 If so, the RAD must then determine whether the RPD erred in its analysis of the appellant's prospective risk in her country of residence. Permanent resident status [16] The evidence on the record clearly establishes that the appellant has permanent residence in Brazil. The RPD's finding on this point is correct and I do not need to intervene. [17] The RPD's findings regarding the nature of the appellant's status in Brazil are based on a set of elements: page 1 of her statutory declaration,5 the VIPER visa6 (valid for five years) and the stamp in her passport7 confirming permanent residence since XXXX XXXX, 2013 (automatically renewable after nine years). [18] The appellant is not contesting the existence of these documents; rather, she alleges that the RPD made a mistake in its interpretation of the documents. According to the appellant, the fact that permanent residence must be renewed every nine years means that the residency is not permanent but actually temporary. As an example, she cites the temporality of the VIPER, which is only valid for five years. [19] I do not agree with this interpretation. As per the National Documentation Package on Brazil, permanent residence is indeterminate, even for a foreigner. With respect to the VIPER and its five-year timespan, referred to in Article 18 of Law No. 6,815,8 respectfully, the appellant is confusing the two documents. The VIPER does not confirm permanent residence; rather, it is the permanent residence stamp itself. Once granted, as is the case here, permanent residence is automatically renewed every nine years without the requirement to reapply.9 [20] Furthermore, even if the appellant had lost her permanent resident card as she claims, this is not an indication that she has lost her status. Regarding the loss of permanent resident status, Brazilian law states that a foreigner who is absent from Brazil for more than two years loses his or her status.10 At the hearing, the appellant still had her status, as she had not yet been absent for more than two years. [21] Finally, the documentary evidence indicates that the appellant, as a permanent resident, has the right to return to Brazil, the right to work there, to study there and have access to social services, including access to education, health, work, leisure, security, social security, protection of motherhood and childhood and assistance to the destitute.11 She therefore has a status that is substantially similar to the status of that country's nationals,12 meaning that she is excluded from the application of the Convention. The RPD's finding is well supported by the evidence. Prospective risk [22] As the appellant is a permanent resident of Brazil, I am of the opinion that the RPD did not err in reviewing the appellant's prospective risk in her country of residence, Brazil, rather than in Haiti, as she would like. [23] The RPD determined that the evidence, as submitted by the appellant, does not establish a serious possibility of persecution in Brazil on one of the five Convention grounds or that she would likely be subjected to one of the risks set out in paragraph 97(1)(b) of the IRPA if she were return to Brazil. [24] Thus, considering the lack of statements by the appellant in her BOC Form regarding any risk or threat in Brazil, either in her account or at question 3, I cannot conclude that the RPD erred in finding that the appellant did not establish a serious possibility of persecution in Brazil on one of the five Convention grounds. Its decision is well supported by the evidence and I therefore do not need to intervene on this point. [25] The RPD considered the appellant's testimony regarding the difficult economic situation in Brazil, generalized violence in the country and racist Brazilian attitudes toward Haitians that this situation might have given rise to, but it noted that the appellant had not personally experienced or personally been targeted by problems of that kind. It also considered the appellant's testimony about her difficulties finding a job and the loss of her housing but noted that, while distressing, the evidence and the appellant's personal situation do not meet the required threshold to amount to persecution, even cumulatively. [26] Exclusion clause 1E is based on the principle that international protection is surrogate protection meant to benefit those facing a threat of persecution. Having determined that the evidence is not sufficient to find that there is a serious possibility of persecution in the country of residence, Brazil, it was not necessary for the RPD to review prospective risk for Haiti. The RPD's finding was correct and I do not have grounds to intervene. [27] Finally, with respect to her minor son, I agree with the RPD that in the absence of evidence, the RPD cannot find that there is a serious possibility of persecution for the child or that his life would likely be subjected to one of the risks set out in section 97 of the IRPA in Brazil. [28] For all of these reasons, after having reviewed all of the evidence, I am of the opinion that the RPD's findings are not unfounded. They take into account all of the evidence on the record and applicable jurisprudential principles. CONCLUSION [29] The RAD confirms the RPD's determination that the appellant is a person described in Article 1E of the Convention because she has permanent resident status in Brazil. That status confers on her substantially the same rights and obligations as Brazilian nationals. [30] The appellant cannot be a Convention refugee or a person in need of protection pursuant to subsection 111(1) of the IRPA. [31] The appellant did not establish that she and her son face a serious possibility of persecution or that their lives would likely be subjected to one of the risks set out in section 97 of the IRPA if they were to return to Brazil. [32] For these reasons, the appellant XXXX XXXX and her minor son XXXX XXXX XXXX XXXX XXXX are not Convention refugees under section 96 or persons in need of protection under section 97 of the IRPA. [33] The appeal is dismissed. (signed) Nicole Ladouceur Nicole Ladouceur February 8, 2019 Date IRB translation Original language: French 1 Document 1-Basis of Claim Form. 2 Document 4-Minister's notice of intervention, November 10, 2017. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Canada (Minister of Citizenship and Immigration) v. Zeng, 2010 FCA 118. 5 Form IMM-1392, Refugee Protection Division record, p. 180. 6 Appellant's passport, p. 6. 7 Appellant's passport, p. 8. 8 Document 5 - Memorandum of Law on Firm Resettlement: Focus on Haitians in Brazil, p. 2. 9 Document 3 - National Documentation Package on Brazil, March 31, 2017, Tab 3.12: Response to Information Request ZZZ105986.FE, Immigration and Refugee Board of Canada, October 3, 2017. 10 National Documentation Package on Brazil, March 31, 2017, Tab 3.4: Response to Information Request BRA105515.FE, Immigration and Refugee Board of Canada. 11 Document 3 - National Documentation Package on Brazil, March 31, 2017, Tab 3.4: Response to Information Request BRA105515.FE, Immigration and Refugee Board of Canada, May 25, 2016. 12 Canada (Minister of Citizenship and Immigration) v. Zeng, 2010 FCA 118. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB8-07396 MB8-07397 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 (September 18, 2018) Disponible en français