MB8-09465

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 / Dossier de la SAR : MB8-09465 /MB8-09466 Private Proceeding / Huis clos AMENDED (amendments underlined) ? MODIFIÉS (modifications soulignées) Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision April 17, 2019 Date de la décision (amended on May 6, 2019) Panel Me Jo-Anne Pickel Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Gisela 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 and XXXX XXXX (Appellants) are spouses and citizens of Haiti who have appealed a decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] Mr. XXXX alleged that he fears for his life if he were to return to Haiti due to a land dispute in relation to his father's land in 2013. He left Haiti for Brazil in October 2013. Mr. XXXX alleged being beaten by a co-worker who he feared would come after him if he were to return to Brazil because his employer fired the co-worker after Mr. XXXX complained about the beating. [3] Ms. XXXX alleged that she fears being killed by the father of a girl who accused her own father of using voodoo to kill his daughter. She left Haiti in December 2010 and ended up in Brazil in February 2016. Ms. XXXX alleges that a few months after she arrived in Brazil her father told her that the person she feared was going to make his way to Brazil. Both of the Appellants left Brazil for the United States and eventually crossed the border into Canada in 2017. [4] The Minister of Immigration, Refugees and Citizenship intervened in writing to argue that both Mr. XXXX and Ms. XXXX were permanent residents of Brazil and should be excluded from protection. [5] The RPD found that both Appellants were permanent residents of Brazil and that, as such, they enjoyed substantially the same rights as Brazilian nationals. The RPD found that neither Appellant had credibly established a serious possibility of persecution or a likelihood that they would be subject to a risk to their lives or to one of the other risks that would make them persons in need of protection in relation to Brazil. As a result, the RPD found that the Appellants were excluded from protection under Article 1E of the Convention Relating to the Status of Refugees (Convention) and s. 98 of the Immigration and Refugee Protection Act (IRPA). The Appellants argue that the RPD erred in finding that, as permanent residents, they enjoyed substantially the same rights as Brazilian nationals due to the discrimination against Haitians in Brazil. [6] For the reasons set out below, the appeal is denied. The RPD correctly concluded that the Appellants are excluded under Article 1E of the Convention. The Appellants did not dispute that they were permanent residents of Brazil at the time of the RPD hearing. I agree with the RPD that, as permanent residents, they enjoyed substantially the same rights as Brazilian nationals. I agree with the RPD that Ms. XXXX did not credibly establish that she faced a serious risk of persecution or a likelihood of one of the harms that would make her a person in need of protection. Even if I were to accept as true Mr. XXXX allegation about being beaten by a former colleague, I find that he would have a viable internal flight alternative in Rio de Janeiro if he were to return to Brazil. Therefore, I find that the RPD was correct to conclude that the Appellants are excluded from protection under Article 1E of the Convention and s. 98 of the IRPA. ROLE OF THE RAD [7] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. ANALYSIS OF EXCLUSION ISSUE Appellants do not contest that they were permanent residents of Brazil [8] I note at the outset that the Appellants do not contest the RPD's finding that they were permanent residents of Brazil at the time of the RPD hearing. In my view, this finding was correct for all the reasons set out in paras. 37-39 and 52-55 of the RPD's decision. No error in finding Appellants enjoyed the same rights as Brazilian nationals [9] The Appellants argue that the RPD erred in not applying the criteria set out in the Federal Court's decision in Shamlou3 in determining whether, as permanent residents, the Appellants enjoyed substantially the same rights as Brazilian nationals. They argue that, even if permanent residents are granted substantially the same rights as nationals of Brazil on paper, the reality is different. They argue that Haitian permanent residents do not in fact enjoy the same rights as Brazilian nationals. [10] Although the RPD did not cite the Federal Court's decision in Shamlou, it applied the criteria set out by the court in that decision. In Shamlou, the Federal Court found that it was appropriate to examine whether a claimant had the following rights when determining whether they had substantially the same status as nationals of another country: the right of return, the right to work freely without restrictions, the right to study, and full access to social services. These are precisely the factors that the RPD considered in its decision at para. 33. The RPD's decision that permanent residents in Brazil, including Haitian permanent residents, enjoy substantially the same rights as Brazilian nationals is consistent with the case law of the Federal Court and the RAD on this issue.4 [11] The argument the Appellants are making with respect to the discrimination against Haitians in Brazil is an argument that must be considered as part of the analysis of whether the Appellants have established that they face a serious possibility of persecution or a likelihood of the kind of harm that would make them persons in need of protection in relation to Brazil. I turn to these issues in the next section. No error in RPD's findings re. alleged persecution or harm in Brazil No error in finding Ms. XXXX risk allegations not credible [12] The Appellants do not challenge the RPD's credibility finding in relation to Ms. XXXX allegation that a person who had a conflict with her father had threatened to pursue her and kill her in Brazil. The RPD did not find this allegation credible due to inconsistencies in Ms. XXXX evidence about this allegation. I agree with the RPD's finding for the reasons set out at paras. 56-66 of the RPD's decision. Mr. XXXX allegations of persecution and risk to life from colleague not credible [13] The Appellants argue that the RPD erred in finding Mr. XXXX account of the problems he faced in Brazil not credible solely due to a contradiction between his testimony and a date found in one of the immigration forms he filled out.5 The RPD did not believe Mr. XXXX evidence about the beating he suffered at the hands of a former co-worker due to an inconsistency in his evidence about the date on which the incident occurred. In his testimony at the hearing, Mr. XXXX alleged that the incident occurred in early July 2015. He also alleged that he quit his job a few days later and left for Sao Paulo before leaving Brazil for the United States. However, in the forms he filed out when he requested asylum, Mr. XXXX indicated that he had worked in Brazil until July 2016 and that he left Brazil that same month. When the RPD asked Mr. XXXX about the contradiction, he said he must have gotten confused about the dates. The RPD did not believe that the Mr. XXXX would have been mistaken by "more than a year" regarding the dates of the incident and of his quitting his job. Because of the contradiction in the date, the RPD found that it did not believe that Mr. XXXX was beaten by his colleague as alleged. [14] I find that the contradiction in dates does raise some potential credibility concerns. However, I agree with the Appellants that the RPD erred in disbelieving all of Mr. XXXX account of the beating based solely on this contradiction without asking further questions about it. Contrary to the RPD's claim that the differences in the dates was "more than a year", the difference was exactly a year. The difference was between July 2015 and July 2016. It is sometimes understandable that claimants confuse years when they are looking back to recount incidents that occurred to them several years in the past. For this reason, RPD members will often ask further questions to orient claimants in time to ensure that what seems like a contradiction is actually a significant contradiction. The RPD erred in not doing so in this case and in finding that this sole contradiction was enough to completely undermine the credibility of Mr. XXXX account of the beating he allegedly experienced. [15] In my view, the main part of Mr. XXXX account that lacked credibility was not the part about the alleged beating but Mr. XXXX claim that he ran into the former colleague in a supermarket in Sao Paulo a few days later.6 Even assuming that what Mr. XXXX says about the beating is true, it allegedly took place in XXXX XXXX and Sao Paulo is located over 585 km from XXXX XXXX. The population of Sao Paulo at the time was approximately 12 million people. In my view, it would be next to implausible that Mr. XXXX would run into the former colleague in such a large city so far away just a couple of days later. I note that Mr. XXXX did not mention the beating in his initial Basis of Claim form (BoC). In his amended BoC, he claims that his former colleague went after him to make him pay for his being fired. However, at the hearing, he testified that he ran into the former colleague in a supermarket. While it is true that random unlikely coincidences may occur, I find that there was reason to doubt Mr. XXXX account of the highly unlikely coincidence in this case due to the inconsistency in his evidence about the circumstances surrounding his contact with the former colleague in Sao Paulo. No error in applying the evidence in the NDP [16] I disagree with the Appellants that the RPD erred in acknowledging the evidence of the racism and violence against Haitians in Brazil without applying that evidence in this case. [17] The NDP for Brazil does state that there is widespread racial discrimination against Afro-Brazilians and some Haitian migrants have been victims of violent attacks apparently on account of their race or nationality.7 However, not all experiences of discrimination amount to persecution. Persecution consists of a sustained or systemic violation of basic human rights demonstrative of a failure of state protection. For discrimination against a person to amount to persecution, it must be serious and occur with repetition, and must have consequences of a prejudicial nature for the person, such as when an individual is denied a core human right, such as the right to practice religion or to earn a livelihood.8 In my view, the NDP for Brazil does not establish that all Haitians are subject to persecution or the risk of the kind of harm that would make them persons in need of protection in Brazil. For this reason, one must look to the evidence called in particular cases. [18] Even when considered in conjunction with the evidence in the NDP for Haiti and Brazil, the Appellants' evidence regarding the general climate of racism and discrimination against Haitians in Brazil does not at this point rise to the level of persecution as it did not amount to a sustained and systemic violation of their rights that was demonstrative of a failure of state protection. Viable IFA for Appellants in Rio de Janeiro [19] Even if, contrary to the findings above, the Appellants' accounts of the risk they faced in Brazil were assumed to be credible, I find that they would have a viable internal flight alternative (IFA) in Rio de Janeiro if they returned to Brazil today. The RAD sent the Appellants a notice asking them to make submissions on why they would not have a viable IFA in Rio de Janeiro.9 The Appellants did not respond to the notice and the time for doing so has now passed. [20] In assessing an IFA, the RAD must apply a two-pronged test cited in the Federal Court of Appeal's decision in Rasaratnam:10 1) The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or a risk of cruel and unusual treatment or punishment or a danger, believed on substantial grounds to exist, of torture in the IFA. 2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claim, for the claimant to seek refuge there. [21] Both prongs must be satisfied to find that the Appellants have an IFA. Once the issue of IFA has been raised and a potential IFA has been identified, the burden of proof rests with the Appellants to show that they do not have a viable IFA. [22] With respect to the first prong, there is no evidence that would establish that Mr. XXXX former co-worker would know that he had returned to Brazil or was living in Rio de Janeiro, let alone seek him out and find him there more than four years after the initial threats in 2015. The same is the case for the individual that Ms. XXXX claimed to fear. As noted above, I find that the objective documentary evidence in the NDP for Brazil does not establish that all Haitians are subject to persecution or the risk of the kind of harm that would make them persons in need of protection in Brazil. For this reason, I find that the first prong of the IFA test is satisfied. [23] As for the second prong, I am satisfied that the conditions in Rio de Janeiro are not such that it would be unreasonable for them to seek refuge there. The question under the second prong of the IFA test is whether an IFA is objectively reasonable in all the circumstances. The test for reasonableness is whether it would be unduly harsh to expect the claimant to move to another part of the country before seeking refuge abroad. The Federal Court decision in Thirunavukkarasu11 set a very high threshold for what makes an IFA unreasonable in all the circumstances. In this case, there was no evidence from the Appellants or in the NDP for Brazil to indicate that it would be unreasonable to expect the Appellants to seek refuge there before seeking asylum abroad. [24] For these reasons, I find that the Appellants would have a viable IFA in Rio de Janeiro. Summary re. exclusion issue [25] For all the reasons set out above, I disagree with the Appellants' arguments on appeal as to why they believe the RPD erred in finding that they were excluded from protection under Article 1E of the Convention and s. 98 of the IRPA. Given that they were permanent residents of Brazil and they failed to establish either a well-founded fear of persecution in Brazil or that they were persons in need of protection in relation to Brazil, the RPD correctly concluded that the Appellants were excluded from protection under Article 1E of the Convention and s. 98 of the IRPA. CONCLUSION [26] In accordance with paragraph 111(1)(a) of the IRPA, I dismiss the appeal. I confirm the RPD's determination that XXXX XXXX and XXXX XXXX are excluded from protection under Article 1E of the Convention and s.98 of the IRPA. Accordingly, they are neither Convention refugees nor persons in need of protection. Jo-Anne Pickel Me Jo-Anne Pickel May 6, 2019 Date of amended decision April 17, 2019 Date of original decision JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.). 4 See for example Noel c. Canada (Citoyenneté et Immigration), 2018 FC 1062 and X (Re), 2018 CanLII 48754. 5 Questions 8 and 12 of his Annexe A (IMM5669) form. 6 Audio-recording of hearing 1:08:00-1:15:00. 7 Tab 13.2 of NDP for Brazil (April 30, 2018), pp. 1 and 5. 8 See Noel c. Canada (Citoyenneté et Immigration), 2018 CF 1062 at para. 29. 9 Letter from RAD to Appellants' counsel, March 19, 2019. 10 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 11 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-09465/MB8-09466 RAD.25.02 (April 24, 2018) Disponible en français 9 RAD.25.02 (April 24, 2018) Disponible en français