MB8-06834

RAD File No. / No Dossier de la SAR : MB8-06834 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision March 13, 2019 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Gisela Barraza 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 XXXX (appellant), a Haitian citizen, is appealing the decision of the Refugee Protection Division (RPD) rendered February 21, 2018, dismissing his refugee protection claim. OVERVIEW [2] The appellant alleges that he left Haiti following threats to and an attempt on his life on XXXX XXXX, 2013, related to a land dispute with his half-brother. The appellant travelled to Brazil where he lived from XXXX XXXX, 2013, to XXXX XXXX, 2016. He obtained permanent resident status on XXXX XXXX, 2014. The appellant claims that he was the victim of racism and of threats to his life by two Haitians in Sao Paolo who are associated with his half-brother. Fearing for his life, the appellant left Brazil on XXXX XXXX, 2016, for the United States, and arrived in Canada in XXXX 2017 to claim refugee protection. The appellant claims to continue to fear for his life in Haiti due to the land dispute. In Brazil, the appellant has stated a fear of his half-brother's associates and of being a victim of racism. [3] The RPD excluded the appellant under Article 1E of the United Nations Convention Relating to the Status of Refugees1 (Convention) because of his permanent resident status in Brazil and because he has not established a serious possibility of persecution under section 96 of the Immigration and Refugee Protection Act (IRPA) or a risk of prejudice in Brazil under section 97 of the IRPA. [4] The appellant submits generally that the RPD rendered [translation] "a decision based on erroneous findings of fact or of law that it made in a perverse or capricious manner or without regard for the material before it that was presented by the appellant and is inconsistent with the purpose and spirit of the law".2 The appellant asks the Refugee Appeal Division (RAD) to set aside the RPD's decision or accept the new evidence and grant the request for a hearing. [5] After reviewing all the evidence on the record, including the recording of the hearing, I am of the opinion that the RPD did not err in rejecting the appellant's refugee protection claim. [6] The appeal is dismissed. ROLE OF THE RAD [7] The RAD must review the RPD's decision and carry out its own analysis of all the evidence on the record in order to determine, in light of the appellant's arguments, whether the RPD erred. The standard of review for findings of fact, of law, or of mixed fact and law is the standard of correctness. In some cases where the RPD has a real advantage, the RAD will show deference when explaining its reasons.3 NEW EVIDENCE [8] Among the remedies sought, the appellant asks the RAD to accept new evidence and to accept the request for a hearing. I will emphasize that the appellant did not respect the requirements of rule 3(3)(g)(iii) of the Refugee Appeal Division Rules regarding the introduction of new evidence on appeal. In addition, I note that the evidence sought to be introduced is an affidavit sworn on April 16, 2018, which contains the same information as the appellant's detailed account that he already related before the RPD. [9] Consequently, the request to accept new evidence and to hold a hearing is rejected. ANALYSIS Standard of review of the RAD [10] The standard of review applicable in this case is the standard of correctness because there is nothing to show that the RPD has a real advantage in the evaluation of the evidence. I had access to all the evidence before the RPD and carried out an independent analysis. Even without seeing the appellant, I was able to hear and understand the recording of his testimony and consider the RPD's reasons in relation to his evidence.4 Permanent residence status [11] First of all, I would like to state that the appellant does not contest, neither before the RPD nor the RAD, that he holds permanent resident status in Brazil, or that it is possible that he could go back. [12] According to the National Documentation Package on Haiti, permanent resident status is lost if a holder is absent from the country for more than two years.5 The Federal Court of Appeal stated in Majebi that, in the context of an exclusion under Article 1E of the Convention, the status of a claimant in the third country is reviewed on the date of the hearing before the RPD.6 [13] In this case, at the time of the RPD hearing, the appellant had not exceeded the time limit of two years permitted by law to be absent from Brazil before losing his permanent resident status. The RPD correctly found that the appellant was a permanent resident in Brazil at the time of the hearing. Did the RPD err in assessing the evidence or the law? The rights and obligations of permanent resident status [14] The appellant alleges that the RPD erred in paragraph 6 of its decision by concluding that permanent residence in Brazil provides the same rights for Haitians as it does for Brazilians. According to the appellant, permanent residence status in Brazil does not meet all the criteria set out in Shamlou7 and that, in reality, Haitians are constantly subjected to [translation] "disadvantages at work, in business opportunities and in social services due to their ethnicity".8 I am of the opinion that the RPD correctly concluded in paragraphs 6, 8 and 9 of its decision, based on the documentary and objective evidence, that permanent residence status gives permanent residents similar rights to those of Brazilian citizens. The appellant's argument seems to be about respecting these rights in practice, which I will discuss below. Discrimination [15] The appellant alleges that the RPD erred because it did not consider, in its determination of the evidence on the record, the [translation] "threats and racist situations that he experienced while he was in Brazil, specifically an incident of targetted racism where we was attacked as well as the impossibility of finding work".9 [16] In this regard, I note that the claimant stated in his testimony that he was targeted in a racist incident because he was asked to give up his seat on the bus to a white person. Contrary to the appellant's arguments, the RPD considered this evidence in paragraph 13 of its decision. [17] The RPD also considered, in paragraphs 12 and 13 of its decision, the fact that the appellant had difficulties finding a job in Sao Paulo, as well as the fact that the appellant did not try to find work elsewhere in the country. I note that the documentary evidence shows that there is discrimination against Haitians in the labour market10 and Afro-Brazilians in general in Brazil.11 The documentary evidence also shows that since 2014, Brazil is facing the worst economic recession in recent history.12 The appellant has not shown that the inability to find a job was due to discrimination against him, rather than to the economic realities in Brazil, especially in light of the fact that he had a stable job for a year in Brazil. [18] In Ward, the Supreme Court of Canada adopted the definition of persecution as being a "sustained or systemic violation of basic human rights demonstrative of a failure of state protection".13 Persecution is distinguished from discrimination by the severity of the injury, as well as the repetition and persistence of the alleged mistreatment.14 [19] Other than the general statements about racism towards Haitians in Brazil, the claimant did not state that he experienced any other incidents of discrimination. I am of the opinion that the RPD correctly determined that the job insecurity and the difficulties that the appellant faced in exercising his social rights in Brazil, while distressing, do not rise to the level of persecution. [20] The appellant also states [translation] "that certain Haitians or other black people can be the object of discrimination to the point that some of them have been killed".15 I note that the Special Rapporteur on minority issues discusses the "recent migration of considerable numbers of Haitians, some of whom have been victims of violent attacks, apparently on account of their race and nationality".16 The report does not demonstrate the extent or prevalence of these incidents given that, according to the report, this issue was beyond the scope of the study. Consequently, I cannot conclude on this basis that the appellant faces a serious risk of persecution in Brazil. [21] I also note that the National Documentation Package on Brazil reports a high rate of homicides against Afro-Brazilians. However, it seems that this violence is primarily related to drug trafficking and organized crime.17 Threats from the associates of the appellant's half-brother [22] Beyond these references, there is no evidence that shows that Haitians are targets for acts of violence due to their Haitian origins. For this reason, I cannot conclude that the appellant has a well-founded fear of persecution in Brazil. I emphasize that the appellant did not contest the RPD's decision concerning the prospective risk in Brazil in relation to death threats allegedly made by associates of the appellant's half-brother. In light of my analysis, I find that the RPD correctly concluded, in paragraphs 13, 14 and 15, that the appellant's allegations are not credible in this regard, given the considerable deficiencies in his account on such a significant point. [23] For these reasons, I conclude that the RPD was correct in its decision that the appellant is excluded under Article 1E of the Convention because he holds permanent residence status in Brazil and because he did not establish a serious possibility of persecution under section 96 of the IRPA, or that he would be subjected to a risk to his life, a danger of torture, or a risk of cruel and unusual treatment or punishment under section 97 of the IRPA. CONCLUSION [24] Pursuant to paragraph 111(1)(a) of the IRPA, I dismiss the appeal and confirm the RPD's determination that XXXX XXXX XXXX is not a refugee or a person in need of protection because he is excluded under section 98 of the IRPA and Article 1E of the Convention. Bianca Eleonora Suciu Me Bianca Eleonora Suciu March 13, 2019 Date IRB translation Original language: French 1 189 U.N.T.S. 150. 2 Appellant's Memorandum, page 26. 3 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, paras 90, 91. 5 National Documentation Package, Haiti, October 20, 2017, Tab 3.12: Brazil and Haiti: Resident status on Haitian citizens in Haiti, including their rights and responsibilities (2010-September 2017). Immigration and Refugee Board of Canada. October 3, 2017. ZZZ105986.FE, page 12. 6 Majebi v. Canada (Citizenship and Immigration), 2016 FCA 274; Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118 (CanLII), para. 28. 7 Appellant's Memorandum, para. 14. 8 Appellant's Memorandum, para. 16. 9 Appellant's Memorandum, para. 18. 10 Archive - National Documentation Package, Brazil, January 31, 2018, Tab 2.1: Brazil. Country Reports on Human Rights Practices for 2016. United States. Department of State. March 3, 2017. 11 National Documentation Package, Brazil, January 31, 2018, Tab 2.1: Brazil. Country Reports on Human Rights Practices for 2016. United States. Department of State. March 3, 2017, page 25. 12 National Documentation Package, Brazil, January 31, 2018, Tab 2.4: Brazil. Freedom in the World 2017. Freedom House. 2017, page 2. 13 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, page 723. 14 Noel v. Canada (Citizenship and Immigration), 2018 FC 1062, at para. 29. 15 Appellant's Memorandum, para. 17. 16 National Documentation Package, Brazil, January 31, 2018, Tab 13.2: Report of the Special Rapporteur on minority issues on her mission to Brazil. United Nations. Human Rights Council. February 9, 2016. A/HRC/31/56/Add. 1, page 5. 17 National Documentation Package, Brazil, January 31, 2018, Tab 2.4: Brazil. Freedom in the World 2017. Freedom House. 2017, page 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No Dossier de la SAR: MB8-06834 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français