MB8-08941

RAD File No. / No de dossier de la SAR : MB8-08941 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 June 21, 2019 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person who is the subject of the appeal Me Marie-José Blain Conseil de la personne en cause Designated representative N/A Représentant(e) designé(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX is a citizen of Haiti who left his country because of alleged death threats. He went to Brazil in 2014 after passing through the XXXX XXXX. In Brazil, he was able to obtain permanent resident status. He apparently remained there until he left for the United States in 2016, and then came to Canada in 2017. [2] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened and submitted that because of his permanent resident status in Brazil, Mr. XXXX was excluded under Article 1E of the United Nations Convention Relating to the Status of Refugees (the Convention). [3] The Refugee Protection Division (RPD) determined that Mr. XXXX, as a permanent resident of Brazil, was excluded and was therefore neither a Convention refugee nor a person in need of protection. [4] Mr. XXXX also claimed to have a fear of persecution or that he would be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment should he return to Brazil. The RPD identified various factors that led it to find that Mr. XXXX credibility was undermined. It determined that, on a balance of probabilities, he would not be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment in Brazil. [5] He is appealing the RPD's decision rendered on March 27, 2018, and is alleging that: - the RPD failed to consider Mr. XXXX profile as a black Haitian, and that, based on the documentary evidence, this corresponds to the profile of individuals who are targeted and subjected to violence by state agents and the general population; and - the RPD erred by making findings regarding Mr. XXXX credibility based on omissions and late amendments that were duly and reasonably explained. DETERMINATION OF THE APPEAL [6] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD that XXXX XXXX XXXX is excluded under Article 1E of the Convention and is neither a Convention refugee nor a person in need of protection. ROLE OF THE REFUGEE APPEAL DIVISION [7] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record.1 The exception to that rule is where the RPD enjoys a meaningful advantage, in which case the RAD may owe it deference.2 [8] I will apply the correctness standard of review as I conduct an independent analysis of the record, which includes examining all the evidence and listening to the recording. ANALYSIS 1E exclusion [9] From the outset, Mr. XXXX acknowledged having permanent residence in Brazil, which was granted between XXXX and early XXXX 2016, after his name was published in a list compiled under an act of recognition jointly signed by the labour minister and the justice minister in November 2015. This list includes the names of 43,781 Haitians who were granted the right to apply for permanent residence. [10] Considering Mr. XXXX admission regarding his status in Brazil and the absence of an argument on appeal challenging the RPD's determination, I agree with the decision and, pending the assessment of his alleged fear in Brazil, I confirm that Mr. XXXX appears to be excluded under Article 1E of the Convention. Fear in Brazil [11] Furthermore, Mr. XXXX alleges a fear of persecution or a risk of harm in Brazil. First, he amended his Basis of Claim Form (BOC Form) at the beginning of the hearing to: - add Brazil to Haiti as a country where he would be at risk of being subjected to serious harm; - clarify the identity of an individual and why the latter was looking for him in Haiti; and - specify an event of persecution in Brazil of which he had personal knowledge. [12] This fear of persecution or risk of harm in Brazil is allegedly based on a serious possibility that he would be persecuted because of the colour of his skin and his Haitian origin. [13] When asked about his fear in Brazil, Mr. XXXX mentioned the deprivation of black people's rights, mistreatment, as well as lack of employment and access to education. When asked to provide examples of incidents that he had experienced or was aware of, he described in detail the assault of a friend, which is one of the points added in the amendment made at the beginning of the hearing. This is apparently the only case known to him. [14] The RPD made a negative finding based on the omissions and the amendments at the beginning of the hearing. Mr. XXXX explained the omission of the incident involving his friend by stating that he believed that he was only to mention personal events in his written account. The RPD considered this explanation to be contradictory, given that the written account included many general statements. [15] The RPD also had difficulty with the explanations for the omission and late addition of Brazil in the BOC Form. Once again, the RPD found that Mr. XXXX explanations that he misunderstood the question in the form undermined his credibility. [16] Mr. XXXX took care to correct and amend his form at the beginning of the hearing. He did so before answering any questions and before solemnly swearing that the content was true and correct. [17] The amendments merely specify incidents already reported without changing the basis of the claim. It would have been quite different had the amendments been made as the hearing progressed. The same would have been true if the amendments had been intended to change the nature of the acts giving rise to fear or providing evidence of persecution. [18] Mr. XXXX explanations for his amendments seem clear to me. Given the nervousness that a witness experiences at a hearing, it is understandable that there may be gaps in the intelligibility of explanations. [19] Besides the reason for the addition and why it was initially omitted, the incidents reported therein must be examined. In this case, Mr. XXXX was clear in his explanations regarding the incident involving his friend. There is nothing in the testimony about this incident or in the responses to the questions asked by the RPD that leads me to find that he lacks credibility with respect to this incident. [20] That being said, do these findings affect the decision rendered by the RPD? The answer is no. [21] The Country Reports on Human Rights Practices3 reports situations of discrimination affecting Haitians. These situations involve certain employers violating their legal obligations and complaints made in this respect. This situation cannot be considered generalized. The Report of the Special Rapporteur on minority issues on her mission to Brazil4 also refers to attacks on Haitians and other minorities by reason of their race and nationality. Given the few cases listed, this cannot be described as a widespread situation in Brazil whereby Mr. XXXX faces a serious possibility of persecution or a risk of harm. According to the same report, migrants from Africa are particularly targeted. [22] However, not all discriminatory acts are persecution. According to the United Nations 1951 Convention Relating to the Status of Refugees, discrimination amounts to persecution if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, such as serious restrictions on one's right to earn a livelihood, to practise religion, or to have access to normally available educational facilities.5 [23] Upon arriving in Brazil, Mr. XXXX was able to find a job, which he held for one year. Despite the length of his residency, he knew only one person who was allegedly assaulted. In addition, this situation reportedly occurred in 2016, almost two years after his arrival. In this context, it is difficult to claim that such a situation of aggression is widespread against all Haitians. [24] The appeal memorandum refers to Tab 9.3 of the National Documentation Package (NDP) on Brazil dated January 31, 2018. It is entitled The State of Security and Justice in Brazil: Reviewing the Evidence and addresses the various challenges facing Brazilian society. Contrary to what is stated in the memorandum, there is no mention of systematic discrimination against persons of colour who are Haitian nationals. The existing violence stems from the high crime rate in Brazil. Although Haitians may be targeted, this situation is not widespread. [25] Mr. XXXX counsel was provided with Response to Information Request ZZZ106081.F, dated April 27, 2018, for his submissions. Entitled Haïti et Brésil: information sur le traitement réservé aux Haïtiens détenteurs d'un permis de résidence par la société et les autorités brésiliennes, y compris en ce qui concerne l'accès à l'emploi, à l'éducation, aux soins de santé et aux autres services; incidents signalés de violence et de discrimination à l'égard des Haïtiens; protection offerte par l'État brésilien (2016-mars 2018) [Haiti and Brazil: Treatment of Haitians holding a residency permit by society and the Brazilian authorities, including access to employment, education, healthcare and other services; reported incidents of violence and discrimination against Haitians; protection by the Brazilian state (2016-March 2018)], it reports on isolated cases of violence and discrimination. The cases studied involved violence related to crime, and the alleged discrimination concerned people in irregular situations, which is not the case of Mr. XXXX. [26] It also reports that there is racism against people of colour in Brazil, without Haitians being specifically targeted. As for working conditions, the shortcomings identified particularly affect the construction sector and do not concern only Haitians, but all employees. [27] With regard to violence, Response to Information Request ZZZ106081.F also states that it is often linked or related to criminal activity. The lack of police protection and police corruption mainly concern situations involving people who are targeted by or involved in criminal groups. [28] However, nothing about Mr. XXXX circumstances indicates that he found himself in such a situation or was involved with groups working in a criminal context. [29] Therefore, pursuant to paragraph 111(1)(a) of the IRPA, the determination that XXXX XXXX XXXX is excluded under Article 1E of the Convention and is neither a Convention refugee nor a person in need of protection, is correct. CONCLUSION [30] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD that XXXX XXXX XXXX is excluded under Article 1E of the Convention and is neither a Convention refugee nor a person in need of protection. Richard Sheitoyan Me Richard Sheitoyan June 21, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 National Documentation Package on Brazil, March 31, 2017, Tab 2.1, p. 25. 4 Ibid., Tab 13.2, p. 5. 5 United Nations Convention Relating to the Status of Refugees, July 28, 1951. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No Dossier de la SAR : MB8-08941 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français