MB8-04665

RAD File No. / No de dossier de la SAR : MB8-04665 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 January 24, 2019 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Gisela G 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 OVERVIEW [1] XXXX XXXX XXXX is a citizen of Haiti. He fled his country in April 2012 after merchandise was stolen from his business and he was threatened several times. He was allegedly granted permanent resident status in Brazil. The social and political climate in Brazil compelled him to leave for the United States in 2016 and, ultimately, Canada. He fears returning to Brazil because of the prevailing climate of violence there. In addition to his experience in Haiti, he also fears returning there because of the danger that those returning from abroad face in being perceived as wealthy. [2] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the Refugee Protection Division (RPD). He invoked the application of Article 1E of the United Nations Convention Relating to the Status of Refugees (Convention). According to the Minister, because Mr. XXXX status in Brazil is substantially similar to that of Brazilian nationals, the Convention should not be applied in his case. [3] The RPD determined that Mr. XXXX is a person excluded pursuant to Article 1E of the Convention. It also determined that there was no risk in Brazil of his being subjected to a danger of torture, or to a risk to his life or to a risk of cruel and unusual treatment or punishment within the meaning of the Immigration and Refugee Protection Act (IRPA). [4] On appeal, Mr. XXXX lawyer alleges that the RPD erred in that: - it found that Mr. XXXX was excluded, despite the fact his status as a permanent resident of Brazil does not confer on him the same rights as Brazilian citizens. DETERMINATION OF THE APPEAL [5] Pursuant to paragraph 111(1)(a) of the 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 that he is neither a Convention refugee nor a person in need of protection. The Refugee Appeal Division's role [6] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to that rule is where the RPD enjoys a meaningful advantage in assessing the credibility or the weight to be given to the oral evidence it hears, in which case the RAD may owe it deference.1 [7] 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 [8] The determinative issues are exclusion and the risk of harm in Brazil. [9] Mr. XXXX lived in Brazil from XXXX XXXX, 2012, to XXXX XXXX, 2016. The chairperson of the National Immigration Council granted his application for definitive permanent residence by order on XXXX XXXX, 2013. [10] A Cédula de indentidade de estrangeiro card was issued to him on XXXX XXXX, 2014, and is valid until XXXX XXXX, 2022. [11] Tab 3.12 of the National Documentation Package on Haiti from October 20, 2017, lists 43,781 Haitians to whom the Brazilian government granted permanent residence to regularize their status. Mr. XXXX name and passport number appear on line XXXX XXXX XXXX. [12] At first glance, the proof of the order and the subsequent issuing of the identity card demonstrate that Mr. XXXX has permanent resident status in Brazil. [13] According to his testimony, he was informed of the rights and obligations conferred by the card. [14] The criteria to be considered in determining the similarity of non-nationals' rights were developed by the courts, including Shamlou v. M.C.I., 103 FTR 241, and consist of the right to return to the country, to work there freely, to study and to access social services. [15] Articles 5 and 6 of the Brazilian Constitution guarantee equality before the law and the inviolability of the right to life, to liberty, to equality, to security and to property. The Constitution also guarantees social rights, such as education, health, work, leisure, security, social security, protection of motherhood and childhood, and assistance to the destitute. Mr. XXXX demonstrated that he benefitted from his rights by working and having a place to live. [16] Article 30 of Law No. 6.815 of August 19, 1980, provides that permanent residents lose their status if they leave the country for more than two years for purposes other than those authorized by the law. They may return to the country indefinitely provided that they comply with that obligation. [17] For this reason, I find that Mr. XXXX status conferred on him substantially the same rights as those of nationals. [18] Mr. XXXX was not assaulted and experienced no problems during his time in Brazil. He alleged no impediment to his exercising his rights in Brazil, having always held the same job at the same place. The only incident he was aware of is when his cousin was allegedly beaten up by his colleagues in the workplace. Contrary to what is stated in paragraph 17 of the memorandum, apparently, his cousin did not die from the assault, but instead returned to live in Haiti (minute 24:40 of the hearing). [19] Although that incident served as the catalyst for his departure, according to the testimony, his cousin had suffered the same fate numerous times before. [20] At no point did Mr. XXXX feel the need to seek state protection or assistance to access the services provided. He never sought to relocate elsewhere in the country on the pretext that the crisis was generalized. [21] In fact, it appears that the reason for his departure was instead the shortage of work resulting from the economic crisis. The economic climate in Brazil and the resulting violence are well known and sufficiently documented. However, those realities affect all people living in Brazil: nationals, residents and migrants. [22] Therefore, I find the RPD's finding that Mr. XXXX had permanent resident status in Brazil and that that status conferred rights on him that are substantially the same as those of Brazilian nationals to be correct. For this reason, the finding that he is excluded under Article 1E of the Convention is correct. [23] Lastly, I also find the RPD's finding that Mr. XXXX would not face a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment if he returned to Brazil to be correct. CONCLUSION [24] 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 that he is neither a Convention refugee nor a person in need of protection. Richard Sheitoyan Me Richard Sheitoyan January 24, 2019 Date IRB translation Original language: French 1 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-04665 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français