MB8-14474

RAD File No. / No de dossier de la SAR : MB8-14474 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, QC Appel instruit / entendu à Date of decision June 26, 2019 Date de la décision Panel Me Jolyane Lefebvre Tribunal Counsel for the person who is the subject of the appeal Claude Whalen 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, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim. The appellant submits that the RPD erred by finding that there was prima facie evidence that he is a permanent resident of Brazil and that it had a duty to hear him regarding his fear in Haiti. [2] After an independent analysis of the evidence presented, including the recording of the hearing, I am of the opinion that the RPD rendered the correct decision. I conclude that the appellant is a permanent resident of Brazil, that he is excluded according to Article 1E of the Convention relating to the Status of Refugees and that he is neither a Convention "refugee" nor a "person in need of protection" within the meaning of the Immigration and Refugee Protection Act (IRPA). [3] The Refugee Appeal Division (RAD) confirms the RPD's determination, and this appeal is dismissed. BACKGROUND [4] On the Basis of Claim Form (BOC Form), the appellant alleges that he would be persecuted if he were to return to his country by reason of his political opinion because he supported a candidate of the Ayiti An Aktion (AAA) party. He alleges that individuals in the INITE party threatened to kill him in August 2011. [5] Fearing for his life, the appellant hid at a friend's home. He alleges that the same individuals went to his residence and ransacked it while he was at his friend's home. [6] The appellant went to the Dominican Republic and then to Brazil on XXXX XXXX, 2011. [7] At the hearing, he alleged that he was attacked by strangers in Brazil about 15 times between 2012 and 2016. He also claimed that all Haitians suffer violence in Brazil. [8] On XXXX XXXX, 2016, the appellant left to go to the United States. He arrived in Canada in XXXX 2017. THE REFUGEE APPEAL DIVISION'S ROLE [9] The RAD's role in an appeal against a decision of the RPD is defined by the Federal Court of Appeal in Huruglica. That said, to review the RPD's decision, I must independently determine whether the RPD's analysis was correct with respect to each alleged error of law, of fact, or of mixed fact and law. MERITS OF THE APPEAL The Refugee Protection Division's findings [10] The RPD found that the appellant has permanent residence in Brazil and that he enjoys substantially the same rights and obligations as Brazilian nationals. [11] With respect to the fear of returning to Brazil, the RPD found that the appellant failed to establish a serious possibility of persecution or that he would be personally subjected to torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment. [12] The RPD rejected the claim for the following reasons: * In his BOC Form, the appellant fails to indicate that he was attacked in Brazil; * It did not believe the appellant's allegations concerning the various attacks because he provided several different dates for the first incident when he was attacked; * The appellant delayed leaving Brazil, considering that the first attack occurred in 2012; * The appellant's actions were inconsistent with the fear that he alleges because he did not take any steps to regularize his status in the United States. The appellant's arguments [13] The appellant submits that the RPD erred by finding that the appellant is a permanent resident. He adds that he would face a risk if he had to return to Brazil because of where he came from and his skin colour. The appellant submits that the RPD had to consider the fear of persecution in Haiti. ANALYSIS Did the Refugee Protection Division err by finding that the appellant has permanent resident status in Brazil? [14] The RPD found that the appellant is a permanent resident because his name appears in the joint ministerial act from the ministry of justice and the ministry of labour and social security issued in November 2015 by Brazil, and at the hearing, he stated that he has been a permanent resident since 2012. [15] The appellant submits that [translation] "the only prima facie evidence is that his name is on the list, but not that he has permanent residence."1 He adds that there is no evidence that he completed the steps to obtain it and that they had not been completed by all the Haitians on the list. [16] After my analysis of the record, I am of the opinion that the RPD did not err by finding that the evidence established that the appellant is a permanent resident of Brazil. [17] First, I confirm that the appellant's name is on the list of the 43,781 Haitian nationals who were granted permanent residence in Brazil. The ministerial act indicates that permanent residence is granted to the persons on the attached list. I therefore conclude that the RPD did not err by finding that the fact that the appellant's name is included is prima facie evidence that he had permanent residence in Brazil. [18] Whenever there is prima facie evidence related to status in the third country, it is established that the onus shifts, and it is up to the refugee protection claimant to demonstrate that he cannot avail himself of this status or that he cannot return to Brazil. [19] In this regard, the appellant merely submits that there is no evidence that he completed the administrative steps in the act. I am of the opinion that this information should have been presented at the RPD hearing, rather than later, as a new argument before the RAD. [20] In my opinion, this is insufficient for the purpose of finding that he is not a permanent resident, particularly because he stated several times that he has been a permanent resident of Brazil since 2012, in addition to including it in his IMM-5669 and IMM-0008 forms.2 The fact is that the appellant did not take any steps, even in this appeal, to discharge his burden of establishing that he is not a permanent resident of Brazil. Did the Refugee Protection Division err in assessing the appellant's credibility? [21] The RPD came to the conclusion that inconsistencies and an omission it identified in the appellant's testimony undermined his credibility to the point where it did not believe his allegations. [22] In his memorandum, the appellant does not provide any explanation for the inconsistencies and omissions that were identified. [23] I am of the opinion that the RPD did not err by finding that the appellant was not credible. [24] In his account, the appellant states that he left Brazil because the situation had [translation] "become very dangerous for Haitians."3 During the hearing, he testified that he had been attacked by criminals about 15 times. When confronted with the fact that he fails to indicate this information in his BOC Form, the appellant mentioned that he did not have any evidence to present and that he considered only Haiti as his country. The RPD was not satisfied with these explanations, especially since he had received a letter from the Immigration and Refugee Board of Canada stating that the issue of exclusion under 1E was going to be addressed at his hearing. I am of the opinion that the panel is entitled to expect information as important as this to be included in his BOC Form. In my opinion, this omission seriously undermines the credibility of his allegations. [25] In addition, the appellant provided several versions with respect to the date of his first attack. He stated that he had been attacked for the first time in June 2012 and then testified that it was on February 23, 2012, as he was leaving work. When confronted with the fact that he had stated that he had started working on April 26, 2012, and that he had changed the date several times since his testimony began, the appellant responded that it was back in 2012 and that he had forgotten. The RPD found that this significantly undermined the appellant's credibility. Like the RPD, I find that these inconsistencies undermine his credibility. [26] The RPD also noted that he had delayed leaving Brazil, considering that the first attack occurred in 2012, and that he had failed to seek asylum while he was staying in the United States. I agree with the RPD that the appellant's behaviour was inconsistent with that of a person who fears for his life. [27] Therefore, I conclude that the RPD did not err when it found that it did not believe the appellant's story of risks and/or persecution in Brazil. Did the Refugee Protection Division err in assessing forward-looking risk in Brazil? [28] The RPD states that, although it is aware that the situation in Brazil has deteriorated, [translation] "it is reasonable to expect that Haitians are also among the victims of this generalized violence...that does not establish that they are targeted there merely because they are from another country."4 It concludes that the appellant did not allege facts that, cumulatively, could amount to persecution. [29] The appellant submits that there is a serious possibility of persecution in Brazil because black men are specifically targeted and are victims of violence on the part of state agents and the population. He also argues that state protection in Brazil is not adequate. In his memorandum, the appellant cites excerpts from the National Documentation Package on Brazil, which addresses all of these topics. [30] After a full and independent analysis of the evidence, I conclude that the appellant failed to establish that the RPD erred in its analysis. [31] The appellant alleges that he never filed a police complaint because he did not have evidence to present to them, considering that his attackers covered their faces with masks. He also alleges that he would fear reprisals if he ever reported them.5 The recording of the hearing tells me that the appellant did not testify at any point that he feared the police or that the Brazilian authorities would be unable to protect him. I also note that, at the beginning of the hearing, the appellant mentioned that he did not know why the criminals had attacked him.6 [32] The documentary evidence establishes that Brazil adopted legislation that prohibits racism and discrimination based on skin colour and nationality.7 In these circumstances, the appellant did not provide any evidence to rebut the presumption that the state could protect him. [33] Moreover, the case law indicates to us that persecution is a [translation] "sustained or systemic violation of basic human rights demonstrative of a failure of state protection."8 In this regard, the attacks that the appellant alleges that he suffered do not lead me to conclude that they amount to persecution. [34] Following my analysis, in my opinion, the appellant failed to establish that the discrimination that he would face in Brazil amounts to persecution and that the state would not protect him. Did the Refugee Protection Division err by failing to consider the appellant's fear with respect to Haiti, his country of citizenship? [35] The appellant submits that the RPD had to consider the fear of persecution in Haiti and that its failure to do so justifies the RAD's intervention on his behalf. I disagree with the appellant. Since I concluded that he failed to establish that he would face a serious possibility of persecution if he had to return to Brazil, I am of the opinion that it is unnecessary to review the forward-looking risk with respect to Haiti. CONCLUSION [36] For these reasons, the RAD confirms the RPD's determination and determines that XXXX XXXX XXXX is neither a "refugee" within the meaning of section 96 of the IRPA nor a "person in need of protection" under section 97 of the IRPA. [37] The appeal is dismissed. (signed) Jolyane Lefebvre Me Jolyane Lefebvre June 26, 2019 Date IRB translation Original language: French 1 Appellant's memorandum, paragraph 9. 2 Refugee Protection Division (RPD) document, pages 34 and 39. 3 RPD document, page 23. 4 RPD decision, paragraph 27. 5 Recording of the hearing, 27:40. 6 Recording of the hearing, 12:50. 7 National Documentation Package on Brazil, Tab 2. 8 Canada (Attorney General) v. Ward, 1993 2 S.C.R. 689. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-14474 RAD.25.02 (April 4, 2019) Disponible en français 6 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