MB8-13248

RAD File / Dossier de la SAR : MB8-13248 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision April 15, 2019 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Angelica Pantiru Conseil(s) (de la/des) personne(s) en cause N/A Designated representative Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX is a citizen of Haiti who is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] Mr. XXXX fears that if he returned to Haiti today he would be killed or otherwise persecuted because of his sexual orientation. Mr. XXXX left Haiti in 2012 and arrived in Brazil in 2013. He lived in Brazil until he left for the United States in 2016. He eventually arrived in Canada and claimed refugee status here in 2017. Mr. XXXX alleged that he left Brazil because he feared he would be killed by the ex-spouse of the woman he was dating in Brazil. He also testified that he feared being persecuted due to the racism against Haitians in Brazil. [3] The Minister intervened in this case to argue that Mr. XXXX was excluded from protection under Article 1E of the Convention Relating to the Status of Refugees (Convention) and s. 98 of the Immigration and Refugee Protection Act (IRPA). [4] The RPD found that Mr. XXXX was a permanent resident of Brazil and that, as a permanent resident, he enjoyed substantially the same rights as Brazilian citizens. The RPD did not find credible Mr. XXXX's testimony about being threatened and attacked by the former spouse of the woman he was dating. It also found that the evidence did not establish that, if he returned to Brazil, he would face a serious possibility of persecution or a likelihood of the kind of harm that would make him a person in need of protection. As a result, the RPD found that Mr. XXXX was excluded from protection under Article 1E of the Convention and s. 98 of the IRPA. [5] Mr. XXXX alleges that the RPD erred in concluding that the discrimination he described did not amount to persecution and by failing to carry out a separate analysis of whether he was a person in need of protection in relation to Brazil. He also alleges that the RPD erred in making a negative inference based on his failure to claim asylum in the United States. [6] For the reasons set out below, the appeal is denied. One can only have a great deal of sympathy for Mr. XXXX's description of the hardships he experienced during his travel to Canada. However, I find that the RPD correctly concluded that Mr. XXXX is excluded from protection under Article 1E of the Convention. Even when considered in light of the evidence in the National Documentation Packages (NDPs) for Brazil and Haiti, Mr. XXXX's evidence did not credibly establish that, if he returned to Brazil, he would be subject to a serious risk of persecution or a likelihood of any of the harms that would make him a person in need of protection. For these reasons, I find that the RPD was correct to conclude that Mr. XXXX is excluded from protection under Article 1E of the Convention and s. 98 of the IRPA. ROLE OF THE RAD [7] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. ANALYSIS OF EXCLUSION ISSUE No error in finding that Mr. XXXX enjoyed substantially same rights as citizens [8] I note at the outset that Mr. XXXX does not contest the RPD's finding that he was a permanent resident of Brazil. I agree with the RPD's finding on this issue since Mr. XXXX himself conceded that he was a permanent resident of Brazil at the time of the RPD hearing. [9] Mr. XXXX does argue that he did not enjoy substantially the same rights as Brazilian citizens due to the persecution he allegedly experienced in Brazil. In my view, this argument must be considered as part of the assessment of whether Mr. XXXX would face a serious possibility of persecution or a likelihood of serious harm if he were to return to Brazil.3 Based on the evidence in the NDP for Brazil, I agree with the RPD that, as a permanent resident of Brazil, Mr. XXXX enjoyed substantially the same rights as citizens of Brazil.4 RPD did not err in finding no serious risk of persecution [10] In his appeal memorandum, Mr. XXXX repeats the arguments he made to the RPD about why he believes he has established that he would be subject to a serious risk of persecution based on his nationality, race, and/or sexual orientation if he were to return to Brazil. [11] I agree with the RPD that the discrimination that Mr. XXXX alleged in Brazil, while unacceptable, does not cumulatively amount to persecution within the meaning of the Convention. Mr. XXXX testified that many Brazilians criticize Haitians for stealing their jobs. He also testified that there exists discrimination against Haitians in the job market and he said that many Haitians have to sleep out in the street. When the RPD asked him whether he personally experienced any discrimination or harm in Brazil, he said that his colleagues harassed him at work about ten times between 2014-15 by calling him a name that means homosexual and laughing at him.5 He also said that he had to sleep two nights under a porch when he first arrived in Brazil and that women would clutch their purses when he walked by.6 Finally, he also testified that Haitians had to pay 15% of their salary for access to health benefits while Brazilians did not.7 [12] Mr. XXXX is correct to point out that the evidence in the NDP for Brazil and in the articles he filed with the RPD indicate that there exists discrimination against afro-Brazilians, Haitian immigrants and members of the LGBT community in Brazil.8 However, I do not agree that this evidence establishes that all Haitians in Brazil or all members of the LGBT community experience discrimination that amounts to persecution. Persecution consists of a sustained or systemic violation of basic human rights demonstrative of a failure of state protection. For discrimination against a person to amount to persecution, it must be serious and occur with repetition, and must have consequences of a prejudicial nature for the person, such as when an individual is denied a core human right, such as the right to practice religion or to earn a livelihood.9 In my view, one must carefully consider the circumstances of each case individually. [13] As set out in para. 11 above, Mr. XXXX described various incidents of discrimination and harassment based on race, nationality and/or sexual orientation. At the same time, he testified that he had a good job in Brazil which he kept until just before he left Brazil for the United States. Although he testified that Haitians had to pay 15% of their salary to access health care in Brazil, this conflicts with the objective information contained in the NDP for Brazil which confirms that permanent residents have the same rights to medical care as Brazilian citizens.10 In my view, the information contained in the NDP is more reliable than Mr. XXXX's testimony on this issue. When all the evidence is considered as a whole, I find that the RPD was correct to conclude that, even when considered cumulatively, the discrimination that Mr. XXXX alleged did not rise to the level of persecution. [14] For these reasons, I agree with the RPD that the evidence does not establish that Mr. XXXX would face a serious possibility of persecution if he returned to Brazil. RPD did not err in failing to carry out a full analysis under s. 97 of the IRPA [15] Mr. XXXX argues that the RPD erred by failing to carry out a separate analysis of whether he was a person in need of protection under s. 97 of the IRPA. He claims that, if the RPD had carried out such an analysis, it would have concluded that he was a person in need of protection. [16] I disagree. Mr. XXXX is correct to point out that the analysis under s. 96 of the IRPA differs from that under 97 of the IRPA. However, a separate s. 97 analysis does not have to be conducted in every case. Where the RPD finds that a claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record that is capable of supporting a positive determination of the claim under s. 97.11 In this case, the only specific risk of one of the harms listed in s. 97 of the IRPA that Mr. XXXX alleged was the threat posed by his girlfriend's ex-spouse. The RPD found that Mr. XXXX's account of the attacks that he experienced at the hands of his girlfriend's ex-spouse was not credible. Mr. XXXX provides no reasons for why the RPD erred in this credibility finding and I find that the RPD was correct in making this finding for the reasons set out in paras. 13-16 of its decision. Therefore, the RPD was correct to find that Mr. XXXX did not establish that he would be subject to a risk to his life or a risk of any of the other harms that would make him a person in need of protection in relation to his girlfriend's ex-spouse. [17] I note that the NDP for Brazil does speak to the occurrence of incidents of violence against Haitians in Brazil. However, Mr. XXXX did not allege any threats of violence made against him other than those from his girlfriend's spouse. In my view, the evidence in the NDP for Brazil is insufficient to establish, on a balance of probabilities, that Mr. XXXX would be exposed to one of the harms listed in s. 97 of the IRPA if he were to return to Brazil. RPD erred in attaching importance to failure to claim asylum in the United States [18] I agree with Mr. XXXX that the RPD erred in attaching any importance to his failure to claim asylum in the United States given the current American government's well-publicized attitude toward Haitian immigrants. However, I find that, even excluding this consideration, the RPD was correct to conclude that Mr. XXXX was excluded from protection under Article 1E for the reasons set out above. Summary re. exclusion issue [19] For all the reasons set out above, I disagree with Mr. XXXX' arguments on appeal as to why he believes the RPD erred in finding that he was excluded from protection under Article 1E of the Convention and s. 98 of the IRPA. In particular, the RPD correctly found that the evidence did not establish that, if he returned to Brazil, Mr. XXXX would face a serious risk of persecution or a likelihood of one of the harms that would make him a person in need of protection. CONCLUSION [20] In accordance with paragraph 111(1)(a) of the IRPA, I dismiss the appeals. I confirm the determination of the RPD that XXXX XXXX XXXX is excluded from protection under Article 1E of the Convention. Accordingly, he is neither a Convention refugee nor a person in need of protection under s. 98 of the IRPA. (signed) Jo-Anne Pickel Me Jo-Anne Pickel April 15, 2019 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 This approach has been upheld by the Federal Court. See, for example, Noel v. Canada (Immigration and Citizenship), 2018 FC 1062 and Tresalus v. Canada (Citizenship and Immigration), 2019 FC 17. 4 "Brazil: The rights and duties of permanent residents, including the rights and duties of individuals who have a permanent visa, such as professors, researchers, highly skilled technicians and foreign scientists; procedure to obtain or renew a residency permit; grounds for losing permanent residence (2014-May 2016)", (IRB: Response to Information Request, May 25, 2016), Tab 3.4 of National Documentation Package for Brazil (30 April 2018). 5 Audio-recording of hearing 1:44:30-1:50:00. 6 Audio-recording of hearing 2 :24:00- 2:28:00. 7 Audio-recording of hearing 2:16:10. 8 Report of the Special Rapporteur on minority issues on her mission to Brazil (United Nations: February 9, 2016) at Tab 13.2 of NDP for Brazil (March 29, 2019); "Brazil. State of the World's Minorities and Indigenous Peoples 2016: Events of 2015" (Minority Rights Group International, July 2016) at Tab 13.1 of the NDP for Brazil (March 29, 2109); "Situation and treatment of sexual minorities, including legislation, state protection, and support services (2012-April 2016)" (IRB, April 5, 2016) at Tab 6.2 of the NDP for Brazil (March 29, 2109); Articles found at Exhibit P-5 in the RPD record. 9 Noel v. Canada (Immigration and Citizenship), 2018 FC 1062 at para. 29. 10 See document at supra note 4. 11 Canada (Citizenship and Immigration) v Sellan, 2008 FCA 381 at para. 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-13248 RAD.25.02 (September 18, 2018) Disponible en français 7 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