MB8-03535

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 : MB8-03535 MB8-03536 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision December 13, 2018 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person(s) who is(are) the subject of the appeal Darius Constantin Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Marie-France Bigras (Filing of documents) Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The appellants, XXXX XXXX XXXX and XXXX XXXX XXXX, are citizens of Haiti and are married. They are appealing against the decision of the Refugee Protection Division (RPD) dated January 29, 2018. The male appellant, XXXX XXXX XXXX, alleges that the panel erred by applying the exclusion clause against him and when assessing his credibility. The female appellant, XXXX XXXX XXXX, alleges that the RPD erred when assessing her credibility. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1)(a) of the Immigration and refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. OVERVIEW Alleged facts [3] The male appellant alleges that on XXXX XXXX XXXX 2011, he was assaulted by two people, who stole $5,000 Haitian from him. Following this incident, on XXXX XXXX, 2011, he left Haiti for Brazil. [4] The female appellant joined her husband in Brazil on XXXX XXXX, 2016, after she was a victim of an attempted theft in Haiti. [5] On XXXX XXXX XXXX 2016, the spouses left Brazil because of the hostility toward Haitians. They entered the United States in XXXX 2016. They travelled to Canada on XXXX XXXX, 2017, to file a refugee protection claim here. [6] The appellants fear that, should they return to Haiti, they would again be targeted by criminals because they were assaulted in the past and because, as people who have lived abroad, they would be perceived to be bringing money back to the country. Minister's intervention [7] On January 4, 2018, the Minister of Immigration, Refugees and Citizenship (the Minister) intervened in the case to state that the appellants should be excluded from Canada's protection under Article 1E of the Convention because of their status as permanent residents of Brazil. [8] In the male appellant's case, he allegedly acquired his status in June 2012, based on a list of 43,781 Haitian nationals1 and an extract of the Official Journal of Brazil.2 As for the female appellant, the Minister is relying on a statement made by the male appellant in his Generic Application Form (IMM-008).3 [9] The Minister argued that the rights and obligations of permanent residents in Brazil are substantially similar to those of nationals, including the rights to health care, education and employment.4 [10] The Minister submitted that a permanent resident of Brazil loses status after being outside the country for more than two years.5 However, as the appellants left Brazil on XXXX XXXX, 2016, and their hearing before the RPD took place on January 22, 2018, they were still permanent residents of Brazil. [11] Finally, the Minister alleged that the claimants did not invoke any fear of returning to Brazil. As for their fear in relation to Haiti, the Minister argued that it is a generalized fear throughout the country. However, the appellants did not submit evidence that they were personally targeted by crime, and so their claim for refugee protection had to be rejected. [12] In response to the Minister's intervention, the male appellant testified that he was a temporary resident of Brazil and did not know why his name was on that list. He also indicated that he lost his passport and is therefore unable to prove the date on which he left the country, thus preventing him from returning to Brazil as a permanent resident. RPD decision [13] The RPD rejected the two claims for refugee protection. [14] The RPD concluded that the male appellant was excluded under Article 1E of Convention, as he was unable to rebut the Minister's evidence regarding his permanent resident status. The male appellant also did not provide compelling evidence that losing his passport meant losing his permanent resident status. [15] The RPD then analyzed the risk of persecution for the male appellant should he return to Brazil. It found that he lacked credibility because of major omissions in his Basis of Claim Form (BOC Form). [16] For example, it noted that the alleged attempted theft against the male appellant is not mentioned in his BOC Form and that he also does not indicate that he fears for his safety in Brazil. His explanation that the omissions were due to the fact that no one had asked him about Brazil was considered unreasonable. [17] As for his wife's refugee protection claim, the RPD first found that the Minister had not established that she did indeed have permanent residence in Brazil. It then assessed her risk of persecution in Haiti. [18] On that last point, the RPD noted contradictions between the female appellant's testimony and the contents of her BOC Form with regard to an alleged attempted theft concerning her in Haiti. The RPD found that the female appellant was not credible and rejected her refugee protection claim because, in its view, there was no evidence that she faces a serious possibility of persecution or, on a balance of probabilities, that she would be personally subjected to a risk to her safety should she return to Haiti. GROUNDS OF APPEAL AND DECISION SOUGHT [19] In the appellants' opinion, the RPD's findings are ill-founded. [20] The male appellant submits that the RPD erred by concluding that the loss of his passport did not jeopardize his permanent resident status and, ultimately, his right to return to Brazil.6 [21] Furthermore, the male appellant alleges that the RPD erred by assessing his fear should he return to Brazil and by not considering the documentary evidence on racist persecution in Brazil. He also alleges that the RPD erred when assessing his fear of a personalized risk should he return to Haiti. [22] The female appellant submits that the inconsistencies between her testimony and the BOC Form are minor and do not justify rejecting her refugee protection claim. [23] In conclusion, the appellants are asking the RAD to allow their appeal, set aside the RPD's determination and allow their claim for refugee protection or, alternatively, refer the matter to another member of the RPD and give any other direction that the panel considers appropriate. APPLICABLE STANDARD OF REVIEW AND ANALYSIS OF THE APPEAL [24] According to the case law, the RAD reviews RPD decisions by applying the correctness standard of review after carrying out its own analysis of the record. The exception to this rule concerns situations where the RPD enjoys a meaningful advantage in assessing the credibility or weight to be given to the oral testimony it hears, in which case the RAD may apply the reasonableness standard, modified to apply to its own context.7 Should I find that deference is warranted, I will explain how the RPD enjoyed a meaningful advantage with respect to the finding in question. DETERMINATION [25] Having carried out my own analysis of the record, notably by reading the transcript of the hearing and the documentary evidence on the record, I am of the opinion that the standard of correctness must be applied, given that my own decision requires an analysis of several elements with respect to which the RPD did not enjoy a meaningful advantage based on a first-hand observation of the appellants' demeanour. [26] Having applied that standard of review, I find that the appellants' arguments are unfounded and that the RPD did not err when assessing the evidence and their credibility. Its determination that they are not Convention refugees or persons in need of protection is correct. Here is why. The male appellant's status in Brazil [27] I find that the evidence established, on a balance of probabilities, the male appellant's permanent resident status in Brazil and that the assessment of his exclusion at the time of the hearing before the RPD was done correctly.8 There is no reason for me to intervene. [28] In terms of refugee law, protection is given to those who require it, and the purpose of Article 1E of the Convention Relating to the Status of Refugees is to exclude people who do not need protection. [29] In this case, the documentary evidence indicates that the male appellant's name is on a list of people to whom Brazil granted permanent residence and that, at the time of the hearing, it had been less than two years since he had left Brazil. Under Brazilian law, the male appellant was still a permanent resident of that country and enjoyed substantially the same rights and obligations as nationals, including the right to health care, education and employment. [30] In light of the male appellant's failure to present compelling evidence to support his argument-that losing his passport prevented him from proving his exit date from Brazil and thus resulted in the loss of his permanent resident status-the RPD's decision is correct. [31] It is trite law that once the Minister establishes a prima facie case that the refugee protection claimant is not a refugee by virtue of his status in another country, the burden of proof shifts to the claimant to show that he no longer has that status.9 The male appellant's fear in Brazil [32] Regarding the RPD's finding that the male claimant lacked credibility and that he did not have a fear of persecution within the meaning of subsection 97(1) of the IRPA should he return to Brazil, it appears to me to be correct and well supported based on the transcript and the documentary evidence on the record. I do not need to intervene. [33] The Board is entitled to draw negative credibility inferences from an unsatisfactorily explained contradiction between the BOC Form and the claimant's oral testimony.10 [34] In this case, the male appellant submits that he did not really understand prior to the hearing that Brazil would be an important point, which would explain why, in his BOC Form, he failed to mention Brazil as a country where he fears for his safety. [35] However, the male appellant was advised through the Minister's notice of intervention of his possible exclusion under the Convention prior to the hearing and he was invited by the RPD to present evidence relating to his permanent resident status. At the hearing, when the RPD asked whether he had any corrections to make to his BOC Form, he had another opportunity to make clarifications to his BOC Form, which he did not do. In addition, the male appellant is represented by a lawyer. His claim that he did not know that Brazil would be an important topic at the hearing seriously undermines his credibility. [36] The male appellant twice failed to mention in his BOC Form his fear for his safety regarding Brazil. However, that fact is central to his refugee protection claim. The explanations provided, including that he had not noticed the question even though he had in fact responded by writing the United States and Haiti, are unreasonable and undermine his credibility. XXXX XXXX XXXX status [37] The RPD's decision that the Minister did not establish a prima facie case that the female appellant had permanent resident status in Brazil is correct. Aside from her husband's statement, there is no documentary evidence indicating that the Brazilian authorities did indeed grant her such status. I do not need to intervene on this point. The female appellant's fear of returning to Haiti [38] The RPD's finding that the female appellant is not credible because of contradictions in her BOC Form seems to me to be well supported by the transcript. Consequently, I find that the RPD did not err. [39] An accumulation of contradictions and omissions can be fatal to a refugee protection claimant's credibility.11 [40] In this case, the RPD noted contradictions between the female appellant's testimony and the contents of her BOC Form, for which she declared under oath that the information in it was true, complete and correct-once when the document was completed and again at the hearing. [41] The female appellant submits that they are minor contradictions and nuances that should not justify rejecting her claim. I respectfully disagree. The contradictions identified by the RPD touch on important, determinative aspects of an incident that triggered her departure from Haiti. The unsatisfactory explanations undermine the female appellant's credibility. [42] Although discrepancies and contradictions considered individually may seem insignificant, when taken together and considered in context, they may support a finding of a lack of credibility.12 CONCLUSION [43] For these reasons, the RAD confirms the determination of the RPD, namely, that the male appellant, XXXX XXXX XXXX, is excluded under Article 1E of the Convention and is not a Convention refugee or a person in need of protection, pursuant to subsection 111(1)(a) of the IRPA. [44] As for the female appellant, XXXX XXXX XXXX, the RAD confirms the determination of the RPD, that is, that she is neither a Convention refugee nor a person in need of protection, pursuant to subsection 111(1)(a) of the IRPA. [45] The appeal is dismissed. (signed) Nicole Ladouceur Nicole Ladouceur December 13, 2018 Date IRB translation Original language: French 1 Exhibit M-1, Response to Information Request ZZZ105986.FE. 2 Exhibit M-2. 3 P. 4, question 15. 4 National Documentation Package (NDP), Brazil, January 31, 2017, Tab 3.4. 5 NDP, Brazil, Tab 3.4. 6 NDP, Brazil, Tab 3.4. 7 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 F.C.A. 93, para. 78. 8 Majebi v. Canada (Minister of Citizenship and Immigration), 2016 FCA 274, paras. 7, 8 and 9; Melo Castrillon v. Canada (Minister of Citizenship and Immigration), 2018 F.C. 470, paras. 25-26. 9 Canada (Citizenship and Immigration) v. Tajdini, 2007 F.C. 227, para. 36. 10 Grinevich et al. v. Canada (Minister of Citizenship and Immigration), No. IMM-1773-96. 11 Aguilar v. Canada (Minister of Citizenship and Immigration), 2012 F.C. 150, para. 42. 12 Rajaratnam v. Canada (Minister of Citizenship and Immigration), (1991) 135 N.R. 300 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-03535 MB8-03536 8 RAD.25.02 (April 24, 2018) Disponible en français