TC2-26781

RAD File / Dossier de la SAR: TC2-26781 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision TC2-26781 Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision February 15, 2023 Date de la décision Panel Charles A. McDermott Tribunal Counsel for the person who is the subject of the appeal Zuleika Gonzalez Perez 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 OVERVIEW [1] I dismiss this appeal. [2] XXXX XXXX XXXX (the Appellant) is a citizen of Cuba. The Appellant alleges that he faces persecution from the Cuban government because he expressed an anti-government political opinion on his computer screen while he was a XXXX XXXX. The Refugee Protection Division (RPD) found that he was excluded from protection under Article 1E and section 98 of IRPA as he had, and could regain, status substantially similar to a national in Brazil. The Appellant argues that the RPD erred in considering his status in Brazil, and failed to consider the specific risks he feared in his home country. The Minister intervened in writing at the RPD, but has not intervened here. [3] The Appellant is relying on new evidence, but has not requested an oral hearing. [4] The determinative issue in the appeal continues to be exclusion. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE The evidence presented by the Appellant is rejected [6] According to the Law,1 I can only accept evidence that: (i) arose after the RPD decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant (the Singh/Raza factors) before I can accept it.2 Appellant's Wedding Certificate [8] The Appellant has submitted the English translation of his wedding certificate3, which shows he was married on XXXX XXXX, 2017, and divorced on XXXX XXXX, 2018. The certificate predates the RPD decision, and was readily available at the time of the decision. When asked by the RPD4 why he did not provide his divorce certificate, the Appellant replied that he did not have the document in his hand. The RPD did not have any follow-up questions, and it was open for the Appellant to assume that the RPD was satisfied. I find that the Appellant could not reasonably have been expected in the circumstances to have brought the certificate to the RPD prior to its decision. The certificate therefore meets the statutory requirement. However, I find that the certificate fails the Singh/Raza factors of newness and relevance. In paragraph 10 of its decision, the RPD accepted that the original reason for the residency grant (ie, the Appellant's marriage to a Brazilian national) had ceased. In other words, the RPD accepted that the Appellant was divorced, so the information is not new. Since the Appellant's marital status is not an issue in the appeal, I find that the certificate is also not relevant in the appeal. I do not accept the certificate into evidence. www.lawyers-brazil.com article "Brazil Permanent Residency - The 2022 Procedure Presented by Our Lawyers"5 [9] The article was updated on March 31, 2022, which predates the RPD decision, and was also reasonably available at the time of the RPD decision. The Appellant was aware that his residence status in Brazil was an issue, and therefore could have been expected, in the circumstances, to have presented the article to the RPD prior to its decision. I find that the article does not meet the statutory requirement for new evidence. Even if the article did meet the statutory requirement, it would fail the Singh/Raza factor of newness, since similar information is already available in the National Documentation Package for Brazil, which is already before me. I do not accept the article into evidence. Brazil Decree No. 9.199 of November 20, 2017,6 and Brazil Law No. 13.445 of May 24, 20177 [10] Both Decree No. 9.199 and Law No. 13.445 are already before me as part of the National Documentation Package for Brazil. ANALYSIS [11] Contrary to the Appellant's submissions that I am to apply the reasonableness standard of review, my role is to look at all the evidence, and decide if the RPD made the correct decision.8 The RPD did not err in its assessment of exclusion [12] The RPD found that the Appellant was excluded from refugee protection under Article 1E and s.98 of IRPA. The Appellant argues that the RPD erred in its analysis of the Appellant's status in Brazil and failed to consider the specific risks feared by the Appellant in Cuba. [13] The RPD correctly identified the three-step test established by the Federal Court of Appeal in Zeng9 with regards to exclusion under Article 1E. (a) Step 1: Considering all relevant factors to the date of the hearing, does the Appellant have status, substantially similar to that of its nationals, in Brazil? (b) Step 2: Did the Appellant previously have such status and lost it, or had access to such status and failed to acquire it? (c) Step 3: The RPD (and I) must consider and balance various factors, including, but not limited to, the reason for the loss of status (voluntary or involuntary), whether the Appellant could return to Brazil, the risk the Appellant would face in Cuba, Canada's international obligations, and any other relevant facts. [14] At step 1, the RPD correctly found that, at the time of the first RPD hearing, the Appellant did not have status, substantially similar to that of its nationals, in Brazil. The Appellant does not dispute this finding. [15] At step 2, the RPD correctly found that the Appellant previously had such status in Brazil and lost it. The Appellant does not dispute this finding. [16] At step 3, the RPD correctly noted that it must consider and balance various factors, including but not limited to, the reason for the loss of status (voluntary or involuntary), whether the Appellant could return to Brazil, the risk the Appellant would face in Cuba, Canada's international obligations, and any other relevant facts. The RPD found that, on balance, the analysis of these factors weighed in favour of exclusion. The Appellant argues that the RPD erred in its analysis of some of the factors. [17] For the reasons that follow, I find that the RPD did not err. The Appellant lost his status in Brazil voluntarily [18] The RPD found that the Appellant lost his residence status in Brazil voluntarily when he was absent from Brazil for more than two years, and that this weighs in favour of exclusion. The Appellant argues that he lost his residence status when he divorced his former Brazilian wife, but has not made any arguments about whether this weighs in favour of exclusion. [19] I accept the Appellant's argument that he lost his residence status through divorce. However, the Appellant has not presented any evidence that he opposed his divorce. I find that, on a balance of probabilities, he was a willing party to the divorce. His loss of residence status when he divorced a Brazilian national was a direct result of his willingness to divorce. I therefore find that the Appellant lost his status voluntarily. I agree with the RPD that his voluntary loss of residence status in Brazil weighs in favour of exclusion. The Appellant could return to Brazil [20] The RPD discusses whether the Appellant could return to Brazil in paragraph 11 of its decision. The first sentence states: "I find that the claimant likely could return to Brazil," but at the end of the paragraph states: "I cannot find that the claimant could return to Brazil and I find this factor weighs against exclusion." One of these sentences is clearly not correct. This is of no matter as I can conduct my own analysis of Brazilian law as it relates to residence status. The Appellant argues that he cannot return to Brazil. [21] There is no merit to the Appellant's argument. To my mind, there are two parts to whether the Appellant could return to Brazil. The first is whether the Appellant would be allowed to enter Brazil, and the second is whether he could obtain residence status once in Brazil. As a starting point, there is no dispute that the Appellant's parents both have residence status in Brazil. [22] Regarding whether the Appellant could enter Brazil, the Appellant argues that he would not be able to re-enter Brazil as a permanent resident. This is correct. However, Article 45 of Decree No. 9.199 of November 20, 2017 (Decree No. 9.199) states: "Art. 45. A temporary visa for family reunion purposes shall be granted to the immigrant: ... II - the son of a Brazilian or an immigrant beneficiary of a residence permit; ...."10 [23] Although the Appellant could not enter Brazil as a permanent resident, I find that he could enter Brazil as the son of an immigrant beneficiary of a residence permit. [24] Turning to the issue of whether the Appellant could obtain a new residence permit, first I note that Article 135 of Decree No. 9.199 addresses the issue of whether an immigrant can obtain a new residence permit for different reasons: "Art. 135. The loss of the residence permit shall be decreed in the following cases: I - cessation of the basis for the residence permit; II - obtaining a residence permit based on another hypothesis; ... Paragraph 2. The provision in item I of the head provision does not prevent the immigrant from requesting a residence permit based on another hypothesis."11 [25] Decree 9.199 goes on in Article 142 to state: "Art. 142. The request for a residence permit may be based on the following hypotheses: I - when the purpose of the residence is: ... k) family reunion; ...."12 [26] As the Appellant is the son of an immigrant beneficiary of a residence permit, I find that, on a balance of probabilities, he would be able to obtain a residence permit in Brazil on the hypothesis of family reunion. [27] I find that the facts that the Appellant could obtain a visitor visa, and then a residence permit in Brazil, weigh in favour of exclusion. The risk to the Appellant in Cuba is not such that it weighs against exclusion [28] The RPD found that the Appellant had not provided sufficient credible evidence to establish that he would be at risk in Cuba, and that this weighed in favour of exclusion. The Appellant argues the RPD erred in its credibility assessment, and did not consider the objective evidence regarding persecution in Cuba. [29] The RPD analysis concerning the Appellant's risk in Cuba is at paragraphs 12 to 20 of its decision. In summary, the RPD noted inconsistent evidence about XXXX, omissions from the Appellant's Basis of Claim (BOC) narrative, the Appellant's delay in leaving Cuba and his subsequent re-availments to Cuba and concluded that the Appellant was not a credible witness. [30] The RPD did not believe that the Appellant ever attended XXXX in Cuba. This finding was based on the Appellant's inconsistent testimony for the events while attending XXXX, and the fact that the Appellant did not mention attending XXXX on his immigration documents. I agree that the Appellant's testimony regarding his time at XXXX was confusing and inconsistent. However, two pages of the Appellant's BOC narrative are devoted to events related to his attendance at XXXX in Cuba. Appellant's counsel should have caught the omission from the immigration form. In any event, the Appellant's explanation for the omission is not unreasonable. He included his time XXXX in Brazil because it was more recent. I would also note that he does not mention XXXX in Brazil in his BOC narrative, so including it on his immigration forms would make sense. Also, regarding the fact that his immigrations documents state that he was working as a XXXX XXXX at the same time as he claimed to be XXXX in Cuba, it is not unusual for XXXX to work part-time while XXXX, and so I do not find it unreasonable for him to include this work on his form. This RPD error is not determinative as it does not overcome the Appellant's other credibility concerns. [31] Regarding the omissions from his BOC narrative, the Appellant argues that the pressure and stress he was under while preparing his BOC narrative and while testifying at the RPD hearing account for the omissions. There is no merit to this argument. The Appellant, as do all refugee claimants, had a limited time to prepare and submit his first BOC, which the Appellant completed on October 11, 2019. The Appellant submitted another BOC on June 6, 2022. The revised BOC has the same information as the original. Both BOCs were prepared with the assistance of counsel. The Appellant has not explained how pressure and stress resulted in the inconsistencies and omissions in either version of his BOC narrative. There is no doubt that claimants are stressed when appearing before the RPD. The Appellant was represented by counsel, and after listening to the entire RPD hearing, I note that the RPD used a neutral questioning tone throughout and allowed the Appellant to respond without interruption. When the Appellant became distressed during questioning, the RPD quickly stopped the hearing, and following a short break, adjourned the hearing to another day. I find that the Appellant has not adequately explained the omissions from his BOC narrative, and this undermines his credibility. [32] The RPD discusses the Appellant's delay in leaving Cuba in paragraph 17 of its decision. The Appellant has not made any argument regarding this finding. I find the RPD analysis to be appropriate, and I adopt it as my own. I find the Appellant's delay in leaving Cuba undermines his credibility. [33] As noted by the RPD, the Appellant returned from Brazil to Cuba once in 2017, once in 2018, and numerous times in 2019. The Appellant's Basis of Claim (BOC) narrative13 only mentions his last return to Cuba on XXXX XXXX, 2019, just before he came to Canada. He describes being questioned by the immigration officer, and warned not to meet with opposition organizations. He also states that he was summoned back to state security headquarters the week after his return, where he was insulted and forbidden to leave the city. He also describes being detained and threatened for two hours while trying to attend the graduation of his youngest brother. Despite being told not to leave the city, approximately one month later, the Appellant departed for Canada. [34] In response to the Minister's intervention regarding his numerous returns to Cuba, the Appellant responded that these were to visit his young daughter, who had fallen ill in 2018. I do not question the Appellant's motives for returning. However, each time he returned to Cuba and each time he departed, he came into direct contact with his alleged agent of persecution, the Government of Cuba. The Appellant does not describe taking any special precautions or making any special arrangements to enter or leave Cuba. He does say that he was left in special waiting rooms on arrival, had some of his belongings confiscated, and felt that he was being watched while in Cuba. The Appellant does not mention ever encountering any difficulties in leaving Cuba. [35] I find that the Appellant's returns to Cuba without taking precautions demonstrates a lack of subjective fear and the fact that the Appellant generally only experienced minor inconveniences when returning to Cuba undermines his claim. [36] The RPD also found that the letters from the Appellant's uncle, brother and father were insufficient to overcome the credibility issues in the claim. The Appellant has not made any argument regarding this finding. I have reviewed the record and I agree with the RPD finding. [37] There is no merit to the Appellant's argument that the RPD did not consider the objective evidence regarding persecution in Cuba. There is no doubt that citizens in Cuba face difficulties. However, the Appellant failed to provide sufficient credible and trustworthy evidence that the difficulties he would face in Cuba rise to the level of persecution. [38] For these reasons, I find that the Appellant has not demonstrated that the risk to him in Cuba is such that it weighs against exclusion. Canada's international obligations and other relevant considerations [39] The RPD found that excluding the Appellant would not vitiate Canada's international obligations. The Appellant has not made any arguments regarding this finding. I have reviewed the record, and agree with the RPD finding. I find that this weighs in favour of exclusion. [40] The RPD also found that there was insufficient evidence that he would face discrimination as a Cuban national in Brazil that would rise to the level of persecution, and that the Appellant's risk of violence in Brazil is not linked to a Convention ground and is in fact a generalized risk. The Appellant has not made any arguments regarding these findings. I have reviewed the record, and agree with the RPD findings. I find that these weigh in favour of exclusion. Conclusion on exclusion [41] For the above reasons, I find that the Appellant is excluded from protection by virtue of Article 1E and s.98 of IRPA. CONCLUSION [42] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Charles A. McDermott" Charles A. McDermott February 15, 2023 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, subsection 110(4). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Appellant Record, pp. 431-432. 4 Transcript of June 16, 2022, RPD hearing, page 8. 5 Appellant Record, pp. 434-442. 6 Ibid, pp. 443-510. 7 Ibid. pp. 511-546. 8 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 9 Zeng v. Canada (Minister of Citizenship and Immigration), 2010 FCA 118 (CanLII), [2011] 4 FCR 3, at paragraph 28. 10 RPD Record, Exhibit #3.2, National Documentation Package for Brazil, July 29, 2022 version, item 3.13: ?Law No. 13,445 of 24 May 2017 (Law on Migration) (2017-June 2019). Brazil. 2017. 11 Ibid. 12 Ibid. 13 RPD Record, page 28. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR: TC2-26781 RAD.25.02 (August 20, 2021) Disponible en français 2 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 (August 20, 2021) Disponible en français