MB7-25653

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 File No. / No de dossier de la SAR : MB7-25653 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision May 3, 2018 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Marie Josée L'Écuyer Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Refugee Appeal Division (RAD) sets aside the determination of the Refugee Protection Division (RPD) according to which the appellant, XXXX XXXX XXXX, is not a "Convention refugee" or a "person in need of protection" under section 97 the Immigration and Refugee Protection Act (IRPA) on the basis that he is excluded pursuant to Article 1E of the Convention, by reason of his residence in Brazil from XXXX 2013 to XXXX 2016. [2] The appeal is allowed. FACTUAL BACKGROUND [3] Prior to his departure from Haiti on XXXX XXXX, 2013, the appellant worked at the XXXX XXXX in Saint-Marc. A co-worker suggested that he purchase some land neighbouring his. At the seller's request, the appellant gave his co-worker an advance on the total sale. The appellant realized a short time later that he had been taken advantage of, hence his problems. [4] In XXXX 2013, the appellant arrived in Brazil and applied for asylum. In XXXX 2016, the appellant left Brazil for the United States with the goal of improving his standard of living. Minister's intervention before the RPD [5] On October 5, 2017, the representative of the Minister of Immigration, Refugees and Citizenship (the Minister) filed a notice of intervention, exhibits M-1 to M-4 and submissions.1 The Minister argues that the claimant is a person described in exclusion clause 1E and is not a refugee or person in need of protection. The Minister's position is based on the following: [translation] The claimant resided in Brazil from XXXX XXXX, 2013, to XXXX XXXX, 2016. His name, associated with his passport number XXXX, appears on the list of persons to whom the Brazilian government has granted the opportunity to obtain permanent residence; Contrary to previous resolutions, the ministerial act of November 2015 contains no provision limiting the validity of resident status and does not impose any employment-related condition; The documentary evidence indicates that the rights and obligations of permanent residents in Brazil are substantially similar to those of Brazilian nationals; Foreign nationals lose their resident status if they are absent from Brazil for a period of more than two years. In this case, the appellant stated that he left Brazil in XXXX 2016; The Minister submits that the evidence on the record indicates that the claimant had the opportunity to obtain permanent residence. The Minister believes that it is likely that the claimant registered with the Brazilian authorities as a permanent resident; The Minister submits that once the Minister has adduced evidence establishing a prima facie case that the claimant possesses resident status in another country, the burden of proof shifts to the claimant, who must demonstrate that he no longer has that status; International protection is protection that should be offered to persons meeting certain criteria. According to the Minister, abandoning one's permanent resident status or failing to avail oneself of the opportunity to regularize one's status definitively is not the behaviour of someone who claims to fear returning to Haiti. [6] The Minister did not intervene on appeal. Impugned decision [7] On November 22, 2017, the RPD determined that the claimant is a person described in exclusion clause 1E of the Convention. According to the RPD, the evidence on the record demonstrates prima facie that the claimant is a permanent resident of Brazil. As such, he possesses rights and obligations substantially similar to those of Brazilian nationals in terms of health care, education, work and social welfare. It cannot be concluded from the evidence that the refugee protection claimant lost his status. [8] Concerning his fear of returning to Brazil, the RPD noted the problems of discrimination or racism that exist in Brazil; however, in light of the evidence, including the claimant's particular situation, the RPD found that he failed to establish that a serious possibility of persecution existed or that his life was likely to be subject to one of the risks set out under section 97 of the IRPA in the event of a return to Brazil. GROUNDS FOR APPEAL [9] The appellant submits that the RAD must answer the following questions: > Did the RPD breach the principles of natural justice and procedural fairness in its assessment of the law and the facts when it determined that the claimant has permanent resident status in Brazil and is a person described in exclusion clause 1E? > Does the appearance of the appellant's name on a list appended to the ministerial act of November 2015 create an irrefutable presumption that the appellant has permanent residence? > Did the RPD err by [translation] "glossing over" the claimant's risk of return to his country of origin, in this case, Haiti? SCOPE OF THE APPEAL [10] The appellant argues that the RPD's decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law. [11] The RAD must determine whether the RPD decision is correct,2 except in cases where the credibility of oral testimony is involved and the RPD enjoys an advantage, in which case the RAD must review the findings using a standard of reasonableness, modified to its specific context.3 If an error of fact, law or mixed fact and law was committed, the RAD must intervene using one of the methods set out in sections 110 and 111 of the IRPA. [12] In its independent analysis of the evidence, the RAD must determine whether the RPD committed the alleged errors. For the purposes of this analysis, it must, with respect to Brazil, consider the appellant's situation on the same day that the RPD considered it,4 that is, the day of the hearing. ISSUES [13] The main issue raised by the appeal is the following: Did the RPD err by concluding that the appellant has permanent resident status in Brazil? ANALYSIS [14] Out of concern for consistent and coherent decision-making, the RAD informed the appellant and his counsel that, in examining the appeal, it would consider current information on the status of Haitians in Brazil as contained in the latest versions of the national documentation packages (NDPs) on Haiti5 and Brazil.6 At the time this decision was signed, the RAD had not received additional submissions. [15] To determine whether the exclusion clause in Article 1E of the Convention is applicable, the RAD must determine whether, on the day of the hearing before the RPD, the claimant had status in the third country substantially similar to the status held by the third country's nationals. [16] The specific facts of this case must be reviewed in light of the documentary evidence on the situation of Haitian migrants in Brazil. In that regard, it is reported that, following the earthquake that struck Haiti in January 2010, large numbers of Haitians left their country in search of improved conditions. The Comitê Nacional para os Refugiados (CONARE), the organization that analyzes asylum applications, decided that asylum could not be granted to displaced Haitians unless they could prove the existence of a threat that placed their lives, safety or freedom in peril. However, the authorities considered that Haitians needed a sort of special authorization allowing them to remain in Brazil because of the precarious situation prevailing in Haiti. Accordingly, CONARE decided to send the applications for refugee status to the National Immigration Council (CNIg), which has jurisdiction to review special cases7 and to grant permanent residence for humanitarian reasons, thereby enabling the numerous Haitians to avoid being in the country without legal status.8 Temporary at first, the humanitarian visa became permanent special status for those whose names (43,871 Haitians) appeared on the list appended to the joint act of November 2015 issued by the ministry of labour and social protection and the ministry of justice. The ministerial act requires, among other things, that upon registering with the federal police, which must be done within one year, the person must present certain documents.9 [17] The ministerial act, a complete copy of which is appended to Tab 3.12 of the NDP on Haiti, is accompanied by a list of the names of 43,871 Haitians. The appellant's name, associated with his passport number PP2941652, appears at number 23223 on the list of those to whom the Brazilian government has granted permanent residence.10 [18] The appellant testified that upon arriving in Brazil in XXXX 2013, he registered with the federal authorities. He was given a protocol, a CPF and a work card. The appellant stated that the CPF (Cadostro de pessoas Fisicas), filed as Exhibit D-5,11 is a card to be used as identification and for making purchases. Regarding the protocol,12 the appellant stated that it had to be renewed every year.13 I note that this document, a copy of which is in the RPD record, is in Portuguese and not accompanied by a translation, as required by the RPD Rules. The appellant's statements are consistent with the information in the documentary evidence. [19] Regarding the documents given to Haitians who migrated to Brazil, the information contained in a report entitled Haitian Migration to Brazil indicates the following: The starting point is the asylum request submitted to the migration authority at border towns. When this process is started a protocol is issued to allow the immigrant to get the provisional work permit (employment record card) and CPF, while the asylum request is reviewed by the CONARE.14 [20] In my view, the fact that his name appears on the list of people to whom the Brazilian government granted permanent residence to enable them to regularize their status is prima facie evidence that the appellant possesses that status. On the other hand, it is not irrefutable evidence. The appellant stated that, every year, the Brazilian government publishes a list of names of people to whom permanent residence has been granted. According to his statements at the hearing, his name [translation] "never came up." His counsel asserted that her client did not complete the formalities required to regularize that status. [21] At paragraph 9 of the decision, the RPD writes: [translation] Questioned about his status in Brazil, the claimant stated that he did not know he had obtained permanent residence in Brazil. His lawyer pointed out that her client did not complete the formalities with the Brazilian authorities required to obtain such status. [22] In light of the appellant's statements, I am of the opinion that the RPD erred by not examining in more detail the question of the appellant's residence. First, the RPD should have made a finding as to the reliability of the statements made under oath by the appellant. That is a fundamental question: if the appellant was not aware that his name [translation] "came up," how could he regularize his status? The RPD's other findings are correct insofar as the appellant has permanent residence in Brazil. [23] For these reasons, after considering all of the evidence available to me, the arguments presented and the impugned decision, I am of the opinion that the refugee protection claim must be reviewed by another RPD panel. CONCLUSION [24] For these reasons, I set aside the RPD's determination to the effect that XXXX XXXX XXXX is excluded from the protection offered to refugees under Article 1E of the Convention on the basis that he holds permanent resident status in Brazil. [25] As I am unable to substitute the determination that should have been made without conducting a more complete investigation, I am allowing the appeal and referring the matter to the RPD for re-determination by a different member. [26] The appeal is allowed. Maria De Andrade Me Maria De Andrade May 3, 2018 Date IRB translation Original language: French 1 RPD record, pages 128 to 149. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Henry Majebi et al. v. (Minister of Citizenship and Immigration), 2016 FCA 274. 5 National Documentation Package on Haiti, version dated October 20, 2017. 6 National Documentation Package on Brazil, version dated January 31, 2018. 7 NDP, Haiti, October 20, 2017, Tab 3.12, ZZZ105986.FE, Brazil: Resident status of Haitian citizens in Haiti, including their rights and responsibilities (2010-September 2017), October 3, 2017. 8 Idem, documents in reference: "The Haitian migration to Brazil: Findings of the survey about destination," Migration Notebook No. 6, Haitian Migration to Brazil: Characteristics, Opportunities and Challenges. International Organization for Migration (IOM), July 2014; "Humanitarian visas: building on Brazil's experience," Forced Migration Review (FMR), No. 53, October 2016. 9 Supra, footnote 7. Page 466 of 879. 10 RPD record, page 109, Exhibit M-1. 11 RPD record, page 127, translation pages 100 and 101. 12 RPD record, page 96. 13 Hearing CD 36:31 to 37:50. 14 Supra, footnote 8, page 53 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-25653 8 RAD.25.02 (February 7, 2014) Disponible en français