MB9-23572

RAD File No. / No de dossier de la SAR : MB9-23572 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 September 16, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Me Myriam Harbec 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 INTRODUCTION [1] This is the appeal of XXXX XXXX XXXX, a citizen of the Republic of Haiti, against a decision of the Refugee Protection Division (RPD) rendered on August 30, 2019, rejecting his refugee protection claim. [2] The appellant's account is summarized in these sentences. The appellant states that he fears for his life, should he return to Haiti. He explains that he was beaten and threatened with death by criminals who had burned down his shop in 2011. He states that he went into hiding afterwards and that, on XXXX XXXX, 2011, he left for Brazil, arriving there on XXXX XXXX XXXX 2012. Because of the insecurity-he had been assaulted twice in 2015-and economic difficulties, he left Brazil on XXXX XXXX XXXX 2016, for the United States. He claims that he was forced to leave his wife and child in Brazil because of the risks of the journey. On XXXX XXXX XXXX 2017, fear of deportation in the United States made him come to Canada. [3] The Minister's representative intervened in this case before the RPD by filing evidence. He cited Article 1E of the Convention. He alleged that because the appellant has a child who was born in Brazil and his wife is a permanent resident, he could obtain permanent residence and then the country's nationality under family reunification provisions. [4] The RPD rejected the appellant's refugee protection claim by excluding him pursuant to Article 1E of the Convention and section 98 of the Immigration and Refugee Protection Act (IRPA).1 [5] On appeal, the appellant submitted the following major argument: The RPD erred in concluding that he was excluded under Article 1E of the Convention. Consequently, he adds the following: 1. He indicates that he will be unable to reacquire his permanent resident status because he has been absent from the country for more than two years; 2. The situation in Brazil is not safe for Haitians, and Black people are targets for violence; 3. The fact that the appellant can obtain [translation] "a permanent resident visa in the family class changes nothing about the situation experienced by Afro-Brazilians...." [6] The appellant is asking the Refugee Appeal Division (RAD) to allow this appeal, allow the refugee protection claim, set aside the RPD's determination rejecting the refugee protection claim or refer the matter to the RPD for re-determination before a differently constituted panel. [7] The appellant is not asking to present new evidence pursuant to subsection 110(4) of the IRPA and is not requesting that an oral hearing be held under subsection 110(6) of the IRPA. [8] The Minister's representative did not intervene in the appeal. DETERMINATION [9] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. He is also excluded under the Convention. [10] The appeal is dismissed. SCOPE OF THE APPEAL [11] For questions of fact and law and questions of mixed fact and law, the RAD must apply the correctness standard in accordance with Huruglica.2 [12] After carefully listening to the hearing, I conducted an independent analysis of all the evidence on the record in order to form my own opinion about this refugee protection claim and determine whether the RPD's decision is correct. ANALYSIS [13] Having reviewed all of the evidence on the record, both testimonial and documentary, the RAD makes the same finding as the RPD, that the appellant must be excluded under the Convention. [14] The appellant is of the opinion that the RPD did not properly assess his testimony and that this impact on the decision is to the effect that the appellant would not be persecuted in his country of permanent residence, namely Brazil. [15] Four criteria are used to determine whether an appellant is excluded from the application of the Convention by reason of his status in Brazil. These criteria define whether the appellant has rights that are similar to those of Brazilian citizens. These criteria are the right to return to Brazil, the right to work freely without restrictions, the right to study and access to social services and health care.3 This status must be indefinite. [16] The appellant did not contest the fact that he had permanent resident status in Brazil when he lived in that country. Having done many cases of this type, it is a known fact that Haitian citizens who travelled to Brazil after the earthquake received this permanent residence. He testified that he had obtained permanent residence in January 2012 after arriving in Brazil. He stated that he had obtained a card to this end. According to him, the stay was to end in 2021. [17] Zeng4 is the key to analyzing this type of case. What is the Federal Court of Appeal's instruction on this matter? It essentially states the following: 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? Since the appellant had this status, the following factors must be taken into consideration: The reason for the loss of status (voluntary or not); the possibility of returning to the country; the risk to which the person would be subjected in his country of origin; and, lastly, Canada's international obligations. [18] In his testimony, the appellant stated that he worked legally, received health care and was able to study. He also indicated that he had permanent resident status throughout his stay because his card expires in 2021. It can be safely said that the appellant was always a permanent resident of Brazil. However, he stated that he lost his permanent residence because it has been a number of years since he had left Brazil. His departure from Brazil was on XXXX XXXX, 2016. Consequently, he lost his status in July 2018. According to the evidence on the record, permanent resident status is lost after a period of two years outside Brazil, pursuant to Chapter 2.4 of this text.5 The RAD will use the criteria set out in Zeng as a basis to analyze this claim and conclude whether the appellant should be denied the protection of the Convention. [19] With regard to the appellant's voluntary or involuntary departure, he mentioned having been assaulted twice and experiencing economic difficulties. His testimony in that regard is that individuals attacked him on two occasions, spitting in his direction, and that they stole his work bag and cell phone. They allegedly made racist remarks against him. It should be noted that the initial FIF filed makes no mention of the attacks. It simply states that he left Brazil due to [translation] "insecurity and economic problems." In an amended version submitted on June 27, 2019, a few days before the hearing, he describes an attack on a bus in November 2015 and another assault in December of the same year. The rest of the testimony is to the effect that he was not physically injured, but fears being killed. He added that he was not going to report the situation to the police because he does not speak Portuguese well. The significant additions regarding the attacks on the appellant in his second account were explained by the fact that he had mentioned having experienced racism in Brazilian society, adding: [translation] "because I think I was going to be asked for proof, I have no police report." But there is more. [20] Confronted with the fact that, in his amended account, the appellant mentioned having been robbed of his telephone and his bag and omitted the main part, namely the death threats, he testified that he did not mention this because he had no police report. The same reasoning applies to the theft of his property. He mentions the thefts, but omits the death threats. This manner of explaining past events greatly undermines his credibility. It should also be noted that the appellant was entitled to the services of two professionals and that he acknowledged at the beginning of the hearing that the Basis of Claim Form was complete, true and correct. Because the difference between the two accounts submitted is so great and the appellant also added a crucial element during the testimony, namely death threats, the panel is of the opinion that he is attempting to embellish his record by adding events. The RAD is of the view that this is at odds with his two accounts and his argument in the memorandum that Afro-Brazilians are targets for violence. [21] In addition, the RPD member asked the appellant whether he had thought about moving away from the city to remove himself from the alleged problems, to which he simply replied: [translation] "it's the same everywhere." He states that he had seen it on television. This is a rather weak argument. Moreover, it contradicts the allegation that he does not speak Portuguese in order to report his attacks to the police, but watches the news on the small screen. The absence of an attempt to relocate to another region undermines his subjective fear. What can be added in passing is that his wife and their child still live in the same place and do not appear to be experiencing difficulties. [22] The points mentioned in the appellant's testimony regarding the trouble with strangers on a bus do not explain that he left Brazil involuntarily, on the contrary. His testimony shows that he left Brazil intentionally. [23] As for returning to Brazil, the appellant states that he could be assaulted, as in the past. The RPD wanted to know whether he is familiar with the provisions that would allow him to return to Brazil. In the case at hand, his wife is a permanent resident of Brazil and the son is a citizen of that country. It would be possible for the appellant to reacquire his residence as part of family reunification. [24] The document cited in note 4 also states that the appellant could apply for a family reunification visa, which would enable him to return to and live in Brazil with his family. With this visa and the fact that he has a Brazilian child, he could live in that country and eventually obtain Brazilian citizenship. The RAD is of the opinion that through such an arrangement, the appellant could benefit from the same rights and obligations as Brazilian citizens. [25] In light of this finding, the RAD is not required to analyze the other criteria set out in Zeng because the appellant can return to Brazil. In Osazuwa,6 the Federal Court established that for a national who can return to his country of residence, there is nothing unreasonable about or no point in analyzing the risks in the country of nationality. [26] The appropriate step now is to examine the record under the lens of sections 96 and 97 regarding Brazil. In both of the accounts filed, the appellant describes the economic situation and insecurity in Brazil. In the amended account, he mentions the theft of objects and attacks on two occasions in 2015. According to his testimony and the accounts filed, unknown individuals cursed at and robbed the appellant. The messages were, to say the least, disparaging and racist against the appellant. [27] The RPD analyzed Brazil's democracy and the measures taken to combat racism and social and economic inequality. I will not repeat the text, but will share the analysis produced. Despite the efforts made by various levels of government, Brazil continues to be plagued by violence and social inequality. There is still work to be done in this populous country. [28] The accounts filed and the testimony heard do not reveal persecution or a threat to his life, but are more akin to discrimination. The appellant's above-mentioned actions show that he did not file a complaint with the police and did not even think about moving in this large country. His behaviour is indicative of an absence of subjective fear, and he did not rebut the state presumption. [29] The final aspect to be analyzed in this case concerns Canada's international obligations. This singular subject must be examined taking account of the framework of this case. The RAD analyzed the appellant's documents and testimony, and the panel is of the opinion that Canada's international obligations, in applying the exclusion under our Act, are justified in this specific case. REMEDY [30] In light of all of the above facts and after reviewing the evidence as a whole, the RAD for these reasons confirms the RPD's determination that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the same Act and is excluded under Article 1E of the Convention. [31] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin September 16, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb and Near, March 29, 2016, 2016 FCA 93. 3 Shamlou v. Canada (Minister of Citizenship and Immigration),1995 F.C.J. No. 1537; and Kanesharan v. Canada (Minister of Citizenship and Immigration), 1996 F.C.J. No. 1278. 4 M.C.I. v. Zeng, Guanqiu (F.C.A., No. A-275-09), Noël, Layden-Stevenson, Statas, May 10, 2010 FCA 118, paragraph 28. 5 Index of the National Documentation Package on Haiti, version of March 31, 2020, Tab 14.11: Brazil and Haiti: Situation of Haitians in Brazil, including rights and obligations; permanent resident status; documents issued to Haitians, including Foreigner Identity Cards (Cédula de Identidade de Estrangeiro, CIE); treatment of Haitians..., ZZZ200291.FE. Immigration and Refugee Board of Canada, August 28, 2020. 6 Osazuwa v. Canada (Citizenship and Immigration), 2015 FC 1255, paragraph 51. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-23572 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français