MB8-25715

RAD File No. / No de dossier de la SAR : MB8-25715 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision April 26, 2019 Date de la décision Panel Me Murielle Henri Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Aristide Koudiatou Mianata 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] The appellant, XXXX XXXX XXXX XXXX, a citizen of Haiti, is alleging a fear for his life, his safety and both his physical and psychological well-being if he were to return to Haiti. On XXXX XXXX, 2014, his cousin invited him to a meeting. When arrived, he realized it was a meeting for XXXX criminals, alliances of the Michel Marthely government. He was approached about becoming a member, but he refused. After he refused, he was threatened on several occasions. On XXXX XXXX, 2014, his cousin and his cousin's cronies beat and hit him. After that attack, he moved to an aunt's home in XXXX. On XXXX XXXX, 2014, he left Haiti and went to the Dominican Republic. On XXXX XXXX, 2015, he left the Dominican Republic and went to Brazil. He lived in Brazil from XXXX 2015 to XXXX 2016, but then he left Brazil because of the racism. He arrived in the United States in XXXX 2016 and claimed refugee protection in Canada in June 2017. The Minister intervened at the Refugee Protection Division (RPD) hearing and alleged that the appellant has permanent resident status in Brazil and must therefore be excluded from protection under the Convention Relating to the Status of Refugees1 (the Convention). [2] On October 22, 2018, the RPD rejected the appellant's refugee protection claim on the grounds that he is described in Article 1E of the Convention and that there is no risk should he return to Haiti. [3] The appellant is appealing against the decision. He alleges that the RPD erred in its analysis of Article 1E of the Convention and in its assessment of his credibility. DETERMINATION OF THE APPEAL [4] I dismiss the appeal. The appellant is not credible with respect to his alleged fear in Haiti. THE REFUGEE APPEAL DIVISION'S ROLE [5] For questions of fact, mixed fact and law, and law, the Refugee Appeal Division (RAD) applies the standard of correctness. The exception to this rule concerns a situation where the RPD enjoys a meaningful advantage in the assessment of the credibility or the weight to be given to the oral evidence it hears.2 Unless otherwise indicated in my reasons, I will apply the standard of correctness to all findings. ANALYSIS [6] The appellant is not contesting that he has permanent residence in Brazil. However, in his opinion, he did not enjoy rights and responsibilities substantially similar to those of Brazilian nationals and he has a fear in Brazil. Having conducted my own analysis of the record, I am of the opinion that the RPD erred in assessing the appellant's status in Brazil. However, it did not commit an error when assessing the appellant's fear in Haiti. Status in Brazil [7] The RPD concluded that, at the time of the hearing, the appellant did not have permanent resident status in Brazil. However, it concluded that, since he had voluntarily lost permanent resident status in Brazil, he is excluded from the Convention. The appellant alleges that the RPD erred because the thought process leading to that conclusion is unintelligible and is completely and totally inadequate considering the evidence presented. [8] I conclude that the RPD erred. [9] During his RPD hearing, the appellant stated that he received permanent resident status on XXXX XXXX, 2016, and that his card was valid until 2025. However, he also stated that he lost permanent resident status because he left Brazil more than two years ago. [10] In its decision, the RPD applied the criteria established in paragraph 28 of the reasons in Zeng in order to determine whether the appellant was excluded. I will assess each one. 1. At the time of his RPD hearing, did the appellant have status in Brazil that was substantially similar to that of the country's nationals? [11] The appellant's testimony, his Basis of Claim Form (BOC Form) and his immigration forms demonstrate that the appellant no longer had permanent resident status in Brazil at the time of his RPD hearing. In my opinion, this loss of status demonstrates that, on a balance of probabilities, at the time of his RPD hearing, he did not have a status that was substantially similar to that of Brazilian nationals, in particular the right to return. 2. Given that the answer to question 1 was no, did the appellant previously have this status? [12] I conclude that the answer to that question is yes. The appellant himself testified that he had permanent resident status in Brazil as of XXXX 2016. 3. Given that the answer to the second question is yes, and weighing several factors-such as the reason for losing the status (voluntary or involuntary), whether the appellant could return to the third country, the risk to which he would be face in his country of origin, Canada's international responsibilities and any other relevant facts-is the appellant still excluded under Article E? [13] In this case, I am of the opinion that the appellant did not voluntarily renounce his permanent resident status in Brazil. The appellant testified that he left Brazil because he was afraid,3 there is a lot of pressure on Haitians, Brazilians beat and kill Haitians and he experienced racism at work. In addition, he mentioned that when he was given residence, the authorities did not inform him of the conditions required for it to remain valid.4 Therefore, in my opinion, this is not a case of the refugee protection claimant renouncing his permanent resident status in a third country in which he does not allege to have a fear of returning in order to skirt the application of Article 1E of the Convention and potentially stay in Canada. Moreover, he cannot return to the third country because he has been abroad for more than two years.5 [14] In light of the preceding, I am of the opinion that the appellant did not have permanent resident status in Brazil at the time of his RPD hearing and, consequently, is not excluded under Article 1E of the Convention. Haiti Credibility [15] The RPD found that the appelant was not credible with respect to the threats he received from criminals. The appellant alleges that the RPD erred because it did not note that his testimony was unreasonable. [16] I disagree with the appellant's allegation. [17] The RPD clearly states in its decision that the appellant was unable to explain the contradiction. As a result, the RPD could draw a negative inference from that and did not need to find the appellant's testimony unreasonable. [18] In his BOC Form, the appellant indicates that the criminals came to his home to threaten him. During the RPD hearing, the appellant stated that the criminals did not come to his home,6 that they came to the neighbourhood while he was with his friends. He stated that it happened twice. The second time was in August, in the street. He stated that he was not far from home; it was about a two- or three-minute walk away. When confronted with that contradiction, the appellant explained that he had to to through an alley to get to his house and that, given his location, his mother would have heard if the criminals had tried anything. When confronted with the fact that being in front of the house is not the same as being at the other end of the alley, the appellant answered yes.7 [19] Therefore, like the RPD, I am of the opinion that the answers provided by the appellant do not explain the contradiction concerning where the criminals threatened him. That undermines his credibility. Consequently, the RPD did not err. Inconsistent behaviour a. Reavailment of his country's protection [20] The RPD found that the appellant's credibility and subjective fear were seriously undermined because his behaviour was not that of someone who fears for his life. The appellant alleges that the RPD reasons did not provide a clear and explicit assessment of his credibility. [21] I disagree with the appellant's allegation. [22] Paragraphs 48 to 50 of the RPD decision clearly explain its position regarding the appellant's credibility, namely that his behaviour was inconsistent with that of an individual who fears returning to Haiti. [23] The appellant mentioned that he returned to Haiti three times after the incidents. When the RPD asked him why, the appellant replied that his aunt was not doing well, so he went to visit her. When asked why he needed to return to a location where the criminals knew he had been in hiding, he stated that his aunt was very special to him and that he stayed there for two to four days. [24] According to the appellant's testimony, he made a return trip to Haiti on XXXX XXXX, 2015, because he went to the border to pick up money. In addition, he stated that he returned to Haiti from XXXX XXXX, 2015, to XXXX XXXX, 2015, and that he stayed with his aunt. When the RPD asked him why he had stayed for nearly two weeks, the appellant replied [translation] "It just happened that way, I stayed with my aunt."8 When asked whether he was afraid, he stated that he was, but that no one knew he was there because he had not told anyone. When the RPD remarked that he could have been seen, he stated that, yes, he could have been, but that did not happen. The appellant also mentioned a round trip on XXXX XXXX, 2015, to visit his aunt. [25] Like the RPD, I am of the opinion that the fact that the appellant reavailed himself of Haiti's protection three times in four months is behaviour that is inconsistent with that of an individual who fears for his life. That undermines his credibility. In fact, the appellant testified that he left his aunt's home to take refuge in the Dominican Republic because he feared the members of XXXX who had found out that he was at his aunt's home. However, the appellant spent 13 days with her, running the risk of being seen and killed. [26] As a result, the RPD did not err in drawing a negative conclusion with respect to the appellant's credibility and subjective fear. b. Failure to claim asylum in the United States [27] The RPD concluded that the appellant's subjective fear and credibility were undermined by his failure to claim asylum in the United States. The appellant alleges that he filed an asylum claim when he arrived in the United States and that, even though he did not appear before a judge before he left, this is behaviour that is consistent with an individual who fears for his life. [28] I agree with the RPD finding. [29] Failure to claim international protection at the first opportunity can undermine a refugee protection claimant's credibility unless there is a persuasive or reasonable explanation. When one is not provided, the failure to claim asylum at the first opportunity can undermine a refugee protection claimant's credibility.9 [30] In this case, contrary to the appellant's allegations in his memorandum, he repeatedly stated during his RPD hearing that he had not claimed asylum in the United States. To begin, he stated that he had not claimed asylum because the situation in the United States was not good for him and all he did was suffer. He also stated that he did not claim asylum because he was in detention until XXXX 2016. When the RPD mentioned that he could have claimed asylum after he was released, he stated that he was afraid in the United States because of President Trump's policies. When confronted with the fact that Trump came to power two months after he was released from detention, the appellant replied [translation] "I had just been released." That does not explain why he did not claim asylum in the United States. [31] Then, the appellant stated that when he was released from detention, he recieved an I-94, which allowed him to work. The RPD stated that an I-94 is not a status and asked him whether he had tried to regularize his status. The appellant replied that he had not. When asked why, he stated that he was supposed to appear before a judge on XXXX XXXX, 2017, but that he did not go. When the RPD asked how that prevented him from claiming asylum, the appellant replied that he did not file a claim. When confronted with the fact that he stayed in the United States for six months despite an unfavourable situation-including anti-immigration policies and people being deported-the appellant stated that it was a difficult six months.10 [32] Considering that the appellant repeatedly stated that he did not claim asylum in the United States and his immigration documents make no mention of an asylum claim in the United States, I conclude that it is unlikely that he claimed asylum in the United States. [33] Consequently, I am of the opinion that the RPD did not err in finding that the appellant's behaviour undermines his credibility with respect to a fear or risk in Haiti. Risk of return [34] If he were to return to Haiti, the appellant stated that he fears his cousin and the XXXX group. When asked why they would still come for him after all this time, the appellant stated that the criminals are strong and do not let people off the hook. In addition, he stated that they would come looking for him no matter where he went. [35] However, according to his testimony, his mother and brother stayed with his aunt two months after he was told that the criminals knew where he was hiding and they did not have any issues. In addition, he was able to return to Haiti and spend nearly two weeks at his aunt's home, a place known to the criminals, and they did not come looking for him. Finally, his mother and brother have been living in Grand-Goâve for four years and the criminals have not found them. [36] The onus was on the appellant to demonstrate that, four years after the incidents, he would still be a person of interest for his cousin and members of XXXX. However, the appelant did not demonstrate or present evidence that he would still be a person of interest to them. CONCLUSION [37] For all these reasons, I conclude that the appellant is not excluded under Article 1E of the Convention. [38] I conclude that the appellant, XXXX XXXX XXXX XXXX, did not demonstrate that there is a serious possibility that he would be persecuted on one of the Convention grounds or that, on a balance of probabilities, he would be personally subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to Haiti. [39] The appellant is neither a Convention refugee nor a person in need of protection pursuant to subsection 111(1) of the Immigration and Refugee Protection Act. [40] The appeal is dismissed. (signed) "Murielle Henri" Murielle Henri April 26, 2019 Date IRB translation Original language: French 1 Article 1E of the Convention and section 98 of the Immigration and Refugee Protection Act. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Refugee Protection Division (RPD) audio recording from September 24, 2018, approximately 00:19:00. 4 RPD audio recording from September 24, 2018, approximately 00:21:46. 5 RPD-1, National Documentation Package on Brazil, January 31, 2018, Tab 3.7: Brazil and Haiti: Resident status of Haitian citizens in Brazil, including their rights and responsibilities (2010-September 2017), pp. 12 and 13. 6 RPD audio recording from September 24, 2018, approximately 01:34:50. 7 RPD audio recording from September 24, 2018, approximately 01:40:07. 8 RPD audio recording from September 24, 2018, approximately 01:47:36. 9 Medina Canchon v. Canada (Minister of Citizenship and Immigration), 2012 FC 1374, at paragraph 28. 10 RPD audio recording from September 24, 2018, approximately 00:43:54 to 00:53:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-25715 RAD.25.02 (September 18, 2018) Disponible en français 8 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 (September 18, 2018) Disponible en français