MB9-20823

RAD File No. / No de dossier de la SAR : MB9-20823 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 / entendu à Date of decision November 7, 2019 Date de la décision Panel Me Agnès Connat Tribunal Counsel for the person who is the subject of the appeal Gisela G. Barraza 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] The appellant, XXXX XXXX XXXX, is a citizen of Haiti. He alleges that his life is threatened by members of a gang by reason of a complaint made to the police, and by his uncle, on the grounds of a land dispute. He is claiming refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act1 (IRPA). [2] The Refugee Protection Division (RPD) rejected the claim for refugee protection and determined that the claimant is neither a Convention refugee nor a person in need of protection. Specifically, the RPD concluded that: a) The appellant's demeanour, by letting his status in Brazil expire or by failing to complete the necessary formalities, is incompatible with a subjective fear of persecution or a risk within the meaning of the IRPA in Haiti. b) Regarding exclusion 1E, the RPD concluded the following: - Canada's obligations would be met by excluding the appellant. - The appellant had permanent resident status in Brazil. - Permanent residents in Brazil have the same rights as Brazilian nationals. - Brazilian permanent residents who have been away for more than two years at the time of their hearing risk losing their status. - The appellant's loss of status in Brazil was voluntary. c) With regard to the prospective risk in Brazil, the RPD concluded that the appellant did not establish, on a balance of probabilities, that a gang wanted to recruit him and was threatening his life should he return to Brazil. d) With regard to the prospective risk in Haiti, the RPD concluded the following: - The appellant's testimony was not trustworthy. - The appellant was the victim of a crime of opportunity in Haiti - generalized risk. - The appellant failed to mention the reasons for his fear concerning his paternal uncle in his original Basis of Claim (BOC Form). - The changes made to the appellant's account and his oral testimony about them were inconsistent, and the appellant embellished his story about the situation. - The appellant did not establish, on a balance of probabilities, the truthfulness of the alleged events related to the land dispute. - The appellant did not establish a serious possibility of persecution in the event of his return to Haiti. [3] The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal and set aside the RPD's determination or refer the refugee protection claim to another panel. He submits that the RPD erred in its conclusion that he should be excluded under Article 1E of the Convention and, more specifically, in its application of Zeng. [4] For the RAD, the determinative issue consists in establishing whether the analysis of the factors set out in Zeng weighs in favour of excluding the appellant under section 98 of the IRPA and Article 1E of the Convention. [5] As a result of the application of Article 1E of the Convention, the RAD determines that the appellant is neither a "Convention refugee" nor a "person in need of protection" under subsection 97(1) of the IRPA. [6] The appeal is dismissed, and the RAD confirms the RPD's decision that the appellant is excluded based on Article 1E of the Convention. BACKGROUND [7] The appellant fears some criminals who allegedly stole his motorcycle on the night of February 15, 2015. He alleges that after a complaint was filed with the police, the criminals promised to make him pay for it. Out of fear, on XXXX XXXX XXXX 2015, he left Haiti for Brazil, where he arrived on XXXX XXXX XXXX 2015. He encountered a number of difficulties in Brazil and alleges that he was assaulted and received death threats following his refusal to join a gang of drug dealers. On XXXX XXXX XXXX 2016, he fled Brazil and reached the United States on XXXX XXXX XXXX 2017. On XXXX XXXX XXXX 2017, fearing deportation, the appellant illegally crossed the Canadian border and claimed refugee protection. On December 19, 2018, he filed an amendment to his BOC Form, in which he alleges that he fears his paternal uncle by reason of a land dispute. [8] The Minister of Immigration, Refugees and Citizenship Canada intervened. He submitted that Article 1E of the Refugee Convention applies to the claimant as Brazil had granted him permanent residence, indicating that the appellant's name was on the list of 43,781 Haitian nationals who were granted permanent residence. ROLE OF THE REFUGEE APPEAL DIVISION [9] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the evidence brought before the RPD, including at the hearing. The RAD must determine whether, as submitted by the appellant, the RPD erred. Where the RPD enjoys a meaningful advantage with respect to the assessment of credibility or the probative value of the oral evidence it hears, the RAD may show deference. [10] I applied the standard of correctness by conducting an independent analysis of the RPD's evidence, including by listening to the recording of the hearing. ANALYSIS [11] The appellant was informed that, during the appeal review, the RAD would take into account the new versions of the National Documentation Packages (NDPs) on Brazil and Haiti, which were updated on September 30, 2019. The appellant was given until October 21, 2019, to submit his arguments. At the time this decision was signed, he had not done so. [12] The RPD's final determination does not mention the exclusion. However, upon reading the entire decision, it is clear that the RPD determines that he is excluded based on Article 1E of the Refugee Convention. The RPD erred in not weighing the factors as required by the Federal Court of Appeal in Zeng, but I am of the opinion that applying the full analysis taken from Zeng leads to the same conclusion as that of the RPD regarding the exclusion. In addition, the appellant felt that the RPD's decision determined that he is excluded, as indicated in his memorandum. [13] The appellant submitted arguments on the RPD's findings regarding the exclusion under Article 1E of the Convention as well as the analysis of the discrimination he experienced during his stay in Brazil, but did not submit any arguments on the findings regarding the risk incurred in Haiti, his country of citizenship. Exclusion [14] Article 1E of the Convention stipulates as follows: "This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country." [15] In Zeng2, the Federal Court of Appeal sets out the following criteria for determining whether Article 1E of the Convention should apply to a specific case: Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts. [16] However, Zeng states that a claimant may be excluded from Canada's protection even if they lost their status in a third country. Nevertheless, I must balance various factors to make a finding of exclusion. In the circumstances, the appellant is only contesting the weight given to two factors in Zeng, namely, (i) the voluntary/involuntary nature of his loss of status (including his fears in Brazil);3 and (ii) and whether Canada's international obligations will be met in the event he should return to Haiti, given the crisis of widespread violence there-which would affect the risk to which the claimant would be exposed to in his country of origin.4 Loss of permanent resident status in Brazil [17] The RPD concluded that the appellant had permanent resident status in Brazil or neglected to apply for permanent resident status,5 that permanent residents in Brazil have the same rights as Brazilian nationals,6 that permanent residents who have been away from Brazil for more than two years at the time of their hearing risk losing their status7 and that the appellant's loss of status in Brazil was voluntary.8 [18] The appellant submits that the RPD erred in concluding that he should be excluded under Article 1E of the Convention.9 He is not disputing the fact that he had permanent resident status in Brazil, nor that this status granted him the same rights as Brazilian nationals, nor that permanent residents who have been away from Brazil for two years lose their status. He submits that the RPD erred in concluding that he lost his status in Brazil voluntarily.10 According to him, since he left Brazil by reason of the discrimination and violence he experienced, his departure was not voluntary but, rather, necessary given the urgency. He submits that the RPD erred in applying the criteria of paragraph 28 of Zeng,11 and that even if all of the incidents of persecution and violence he suffered do not fall under the definition of persecution, his reason for leaving Brazil was valid. [19] The appellant's loss of status was voluntary and the RPD's decision is correct. [20] The appellant had status in Brazil and lost it because he was away from the country for more than two years. This is not disputed. Therefore, on the date of the hearing before the RPD, the appellant did not essentially have the same status as a Brazilian national. He admitted that he had this status and stated that he began the process of obtaining permanent residence in Brazil but did not complete it. He stated that he had gone [translation] "downtown" to file the required documents. He was then supposed to return there with his passport to obtain the visa, as well as his citizenship card. He did not do this because, according to him, it was complicated to go to Florianópolis due to high costs and his work, for which he needed to stay available. On the one hand, he found it too complicated to go to the capital of Santa Catarina state, and on the other hand, he did not hesitate to cross several countries and travel for several months to get to the United States. I am of the opinion that the appellant's failure to regularize his status is equivalent to voluntarily surrendering his permanent resident status in Brazil. [21] According to the appellant, nothing in case law or legislation states that he bore the burden of establishing a serious possibility of persecution in the third country in the analysis of the exclusion under 1E of the Convention, and that this analysis is not relevant. He is asking us to consider that his loss of status was not voluntary, but was instead due to the fact that the situation in Brazil was such that his life was at risk because of the violence, discrimination and threats inflicted on him by drug dealers who wanted to recruit him. He submits that the RPD erred in concluding that this discrimination did not amount to persecution and that, as a result, he had a valid reason to give up his status in Brazil. [22] The analysis of the serious possibility of persecution in the third country is part of the analysis of the voluntary or involuntary loss of status. If the appellant demonstrates that he left the third country by reason of persecution, the loss of status may be considered involuntary. I am of the opinion that the appellant did not demonstrate that he suffered discrimination and violence to the point of having to flee the country. In his BOC Form, he maintains that the economic situation in Brazil led to hatred and discrimination toward the Haitian community.12 He also maintains that a group of neighbourhood criminals, drug dealers, wanted to recruit him but he refused.13 He was then beaten and received death threats.14 He did not file a complaint with the police because the police do not do anything.15 In his opinion, the only solution was to leave the country.16 I believe the appellant when he states that there was racism and discrimination in Brazil. However, he did not demonstrate that this racism and the difficulties in finding a job or housing were so extreme that they would constitute an involuntary reason for the loss of his immigration status. [23] Discrimination is undeniable in Brazil. The documentary evidence shows an increase in xenophobic acts and the vulnerability of many foreigners in Brazil. Despite the fact that Afro-Brazilians represent nearly half the population, their economic participation corresponds to just 20% of GDP, and the unemployment rate is 50% higher for Afro-Brazilians than for white people. Black people who are employed earn less than half the amount white people earn. The statistical data broken down by race, which are widely distributed throughout Brazil, show a consistent socio-economic gap between black and white people due to discrimination in all facets of society.17 Despite this highly present discrimination in Brazil, the appellant failed to demonstrate that the discrimination he experienced was such that it could be qualified as persecution and require him to seek protection from it. [24] At the hearing, the appellant did not provide details about these groups of criminals or the harassment they allegedly inflicted on him. He remained vague. He stated that when he walked around, he suffered [translation] "a lot of abuse", and that "the little Brazilians" threatened him at knifepoint and offered him drugs. He was not able to provide a name for the gang and did not testify to any events in particular. In addition to discrimination, Afro-Brazilians experience significant violence and are at a disadvantage compared to the rest of the population on many levels.18 The appellant stated that it was difficult to find work, his work was precarious, housing was expensive and his telephone was stolen at work. This information, on its own, does not amount to the degree of persecution required for the appellant to show that he suffered such serious harm that it equated to a sustained or systemic violation of his basic human rights, thus demonstrating a failure of state protection. In addition, he failed to demonstrate that he suffered repeated and persistent harm or harassment such that he could be considered to be persecuted. [25] Further, the appellant explained that he never asked for protection from the Brazilian government. I am of the opinion that the appellant failed to identify any agents of persecution and did not establish that he was a person in need of protection in Brazil. The appellant did not try to find work in another city or province. In addition, the Brazilian constitution grants permanent residents the same rights as Brazilian citizens. [26] For these reasons, I am of the opinion that the appellant left Brazil for economic reasons instead. He did not complete the process required to obtain permanent residence, which constitutes a voluntary loss of his status and is a factor that weighs in favour of an exclusion under Article 1E. Possibility of returning to Brazil [27] The documentary evidence indicates that the loss of permanent resident status only occurs at the end of an administrative proceeding and that there is recourse to dispute the cancellation of permanent resident status.19 At the hearing, the appellant testified that he did not enquire about his status in Brazil after he left the country. He provided no evidence explaining that he could institute an administrative or legal proceeding to recover his permanent residence in Brazil or return to the country. In the absence of such evidence, I cannot take a stand on this factor, and this factor is neutral with regard to the possibility of exclusion. Assessment of prospective risk in Haiti [28] The appellant did not submit any arguments and does not dispute the RPD's conclusions regarding the analysis of the risk he would face if he were to return to Haiti. The appellant referred to the moratorium on deportation to Haiti and the widespread violence in the country, but he did not present any other submission describing the errors that were allegedly committed by the RPD, or how the RPD allegedly erred in analyzing the prospective risk he faced in the event of his return. It is up to the appellants, not the RAD, to identify errors made by the RPD and to formulate submissions as a result.20 Despite that, I proceeded with an independent analysis of the evidence and concluded that the RPD's decision was correct for the following reasons: [29] The RPD does not find the appellant's testimony trustworthy,21 and believes that even if the circumstances of the motorcycle theft were true, the appellant was the victim of a crime of opportunity.22 [30] The RPD's determination is correct. To submit an application under paragraph 97(1)(b) of the IRPA, refugee protection claimants must show that the risk they would be subjected to is different from the "generalized risk" to which all or part of the Haitian population is subjected. It is therefore important to analyze the context in which the theft took place. Based on the evidence, I am of the opinion that, on a balance of probabilities, this was a crime of opportunity. [31] The evidence and the appellant's testimony indicate that there were not any problems before 2015, and that the only incident was the motorcycle theft. In his initial BOC Form, he explained that he was sleeping and that he saw the criminals steal his motorcycle. The criminals then allegedly returned to his home when he was not there to look for the motorcycle papers and key. They found the statement the appellant allegedly made at the police station and threatened a cousin who was at the house, saying they would take revenge on the appellant. The appellant did not give any reason for having been specifically targeted for the theft. He was unable to identify the criminals. He also did not report any other incidents before his departure or any threats to his family after he left. [32] The appellant came to the hearing with a new version. He explained that the theft was ordered by his uncle. The issue of him fearing his uncle does not appear in the appellant's initial account from December 2017. He added the story about a family land dispute to an amendment in 2018, but even in that amendment, the appellant does not mention the fact that his uncle allegedly ordered the theft and draws no link between the theft and the alleged dispute with the uncle. The appellant completed his refugee protection claim in 2017, two years after the motorcycle theft. I am surprised that the appellant did not think at that time that the theft was ordered by his uncle. I am of the opinion that, even if the story about the land dispute with the uncle was true, the burglary was a random crime and was not ordered by the uncle. The appellant allegedly thought of it in 2017. [33] Given the circumstances surrounding the theft, I am of the opinion that the criminals did not know the appellant before the theft, that they did not target the appellant afterwards to take revenge on him and that this was an isolated incident, a crime committed at random as can occur in Haiti and elsewhere in the world. [34] In Haiti, documentary evidence shows that violence is endemic and targets a large portion of the population. According to the National Documentation Package (NDP) on Haiti,23 the country is facing a serious crime problem. A situation of widespread insecurity is affecting all levels of Haitian society. In 2019, there was increased insecurity due to criminal groups that control several areas of the country and are seen in numerous municipalities. Criminal gangs are present in rural and remote areas as well as in urban centres. The criminals attack merchandise shipments and commit kidnapping, armed robbery, assault or extortion. [35] In light of the documentary evidence, I am of the opinion that the appellant did not establish that the risk to which he could have been subjected is different from the generalized risk to which all or part of the Haitian population is subjected, and that nothing in the evidence shows that the appellant is still being sought after by the same criminals that attacked him in 2015. [36] The RPD identified inconsistencies in the amended narrative from December 2018 regarding the fear of the paternal uncle. The RPD drew a negative inference from the fact that the appellant did not mention these events in his original narrative.24 [37] The RPD's determination is correct. [38] The appellant amended his BOC Form more than a year after filing his refugee protection claim. The land dispute between the appellant and his mother against his uncle is an important factor, not to mention essential to his claim. The fact that he omitted these allegations in his initial claim and chose instead to allege a theft and threats from unidentified strangers damages his credibility. The fact that the appellant attempted to draw a link between the theft and his uncle at the hearing, and therefore later in the process, damages his credibility. In every explanation of this omission, the appellant states that it is a long story and that he had not thought about it. [39] The appellant alleges that if he returns to Haiti, his uncle will think he plans to take legal action to recover his father's property and estate, which the uncle claimed for himself at the expense of the appellant and his mother. The fact that his uncle reportedly uttered threats when the appellant was 18 years old (2011) does not in itself establish the likelihood that he would carry out the threat should the appellant return to Haiti eight years later. In addition, as the appellant did not take any action against his uncle, either prior to or following his departure, to recover his share of the estate, I do not see why the uncle would go after the appellant if he returned to the country. [40] The RPD's determination is correct. The appellant did not establish a serious possibility of persecution should he return to Haiti or, on a balance of probabilities, that he would be personally subjected to a risk to his life or to a risk of cruel or unusual treatment or punishment. [41] I support the RPD's conclusions regarding the lack of prospective risk for the appellant should he return to Haiti. This factor weighs in favour of the exclusion. Canada's international obligations [42] The appellant contests the value the RPD granted to Canada's international obligations as there is a moratorium on deportations to Haiti and the country is facing a crisis of widespread violence.25 [43] I am of the opinion that, should the exclusion in Article 1E of the Convention apply, Canada's international obligations would be maintained. [44] Article 1E protects the integrity of the refugee system from so-called [translation] "asylum shopping," by preventing an individual from seeking protection in Canada, despite being entitled to status in a safe third country.26 In the circumstances, the appellant had a status in a third country, Brazil, and lost it voluntarily. Moreover, the Court of Appeal concluded in Zeng that, in certain specific circumstances, when Article 1E is applied to refugee claimants who are asylum shopping and who cannot return to the third country, such claimants could be sent back to their country of origin without benefiting from a risk assessment. If this were to happen, it would open the door to Canada potentially flouting its international obligations.27 Given that the appellant does not face a risk of persecution or a risk to his life should he go back to Haiti, he can return to his country of origin safely. Canada would not be flouting its international obligations. [45] For these reasons, I conclude that Canada's international obligations would be maintained should the exclusion under Article 1E of the Convention apply, particularly its obligations to protect those who fear persecution and those who would be subjected to a risk within the meaning of subsection 97(1) in the event of their return. Furthermore, I have come to the conclusion that the claimant would not be at risk should he return to Haiti or Brazil. This factor goes against the conclusion that refugee protection must be granted to the appellant. Weighing of all factors established in Zeng [46] After weighing all the factors in Zeng, the RAD determines that Article 1E of the Convention applies to the appellant and that, as a result, he is neither a "Convention refugee" nor a "person in need of protection" under subsection 97(1) of the IRPA.28 [47] The RPD's decision is correct. The appellant is referred to in Article 1E of the Refugee Convention. Under section 98 of the IRPA, he is neither a Convention refugee nor a person in need of protection. CONCLUSION [48] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX is referred to in section 98 of the IRPA and Article 1E of the Convention, and is neither a Convention refugee under section 96 of the IRPA nor a person in need of protection under section 97 of the IRPA. [49] The appeal is dismissed. Agnès Connat Me Agnès Connat November 7, 2019 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 M.C.I. v. Zeng, Guanqiu (FCA, No. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010, 2010 FCA 118, at paragraph 28. 3 Appellant's memorandum, paragraphs 14 to 19. 4 Appellant's memorandum, paragraph 20. 5 Refugee Protection Division (RPD) decision, at paragraph 12. 6 RPD decision, at paragraph 13. 7 RPD decision, at paragraph 14. 8 RPD decision, at paragraph 30. 9 Appellant's memorandum, paragraph 8. 10 Appellant's memorandum, at paragraph 14. 11 Appellant's memorandum, paragraph 11. 12 Amended account, page 16 of the RPD record, paragraph 33. 13 Ibid., at paragraphs 34 and 35. 14 Ibid., at paragraph 36. 15 Ibid., at paragraph 37. 16 Ibid., at paragraph 38. 17 National Documentation Package, Brazil, Tab 13.5: Brazil and Haiti: Employment situation of Haitians in Brazil, including treatment in the workplace; whether Haitians face discrimination in hiring... Immigration and Refugee Board of Canada. September 18, 2019. ZZZ106295.E. 18 National Documentation Package, Brazil, Tab 13.2: Report of the Special Rapporteur on minority issues on her mission to Brazil. United Nations. Human Rights Council, February 9, 2016 A/HRC/31/56/Add.1. 19 National Documentation Package, Haiti, September 30, 2019, Tab 3.17: Brazil: Whether a permanent resident automatically loses permanent resident status if outside the country for more than two years; recourse available to contest cancellation of permanent resident status... Immigration and Refugee Board of Canada. February 14, 2018. BRA106054.FE. 20 Refugee Appeal Division (RAD) Rules, paragraph 3(3)(g). 21 RPD decision, at paragraph 20. 22 RPD decision, at paragraph 22. 23 National Documentation Package, Haiti, September 30, 2019, Tab 7.8: Haiti: Major criminal groups, including their areas of operation, their structure and their activities; state response (2016-May 2019). Immigration and Refugee Board of Canada. 06/06/2019. HTI106293.FE. 24 RPD decision, at paragraphs 23 to 26. 25 Appellant's memorandum, at paragraph 200. 26 Rrotaj, Gjon v. MCI (FC, No. IMM-2929-15, Diner, February 8, 2016, 152 (CanLII), para. 13. 27 Zeng, supra, endnote 2, para. 21. 28 Augustin v. Canada (Citizenship and Immigration), 2019 FC 1232. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-20823 RAD.25.02 (April 4, 2019) 14 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