MB8-24507

RAD File / Dossier de la SAR : MB8-24507 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Québec Appel instruit / entendu à Date of decision June 18, 2019 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the person who is the subject of the appeal Me Michael Dorey 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 is XXXX XXXX XXXX XXXX, a citizen of Haiti. He alleges that he fears returning to Haiti after his daughter was sexually assaulted and he reported the perpetrators to the police. He alleges that the perpetrators threatened him, which left him no choice but to leave his country. [2] The Minister intervened in this appeal, submitting evidence that the Appellant had obtained permanent resident status in Brazil, which would exclude him from refugee protection.1 The Minister further noted that the Appellant had not claimed any fear or risk in Brazil in his forms, and that he returned to Haiti from Brazil for a period of about two months, which affected his credibility with regards to the threats he received in Haiti. [3] The Refugee Protection Division (RPD) found that the Appellant was excluded from refugee protection, because he had obtained permanent resident status in Brazil and he had not demonstrated a well-founded fear of persecution or a risk to his life, and a lack of state protection in Brazil. The RPD concluded that the Appellant could still return to Brazil, as he had left the country on XXXX XXXX XXXX 2016, and the hearing took place on September 6, 2018. The documentary evidence indicates that a permanent resident loses his status in Brazil if he leaves the country for over two years.2 [4] The Appellant argues that the RPD was mistaken in determining the date that the Appellant left Brazil. He states that he left Brazil in XXXX of 2016, which would mean more than two years had elapsed and he had lost his status in Brazil by the date of the RPD hearing. The Appellant further argues that the RPD failed to properly consider his testimony regarding the threats he received in Brazil, and erred in its analysis of state protection in Brazil. [5] I have conducted an independent assessment of the evidence, including the Refugee Appeal Division (RAD) record and the RPD record, which include the audio recording of the hearing at the RPD. DECISION [6] The appeal is dismissed. I conclude that the Appellant is excluded from refugee protection, due to his permanent resident status in Brazil, which he either held, or had voluntarily abandoned at the time of the RPD hearing. ANALYSIS Loss of permanent resident status in Brazil [7] The Appellant does not dispute that he obtained permanent resident status in Brazil. He argues that he had left Brazil for more than two years at the time of the RPD hearing on September 6, 2018, and therefore had lost his permanent resident status in Brazil. Permanent resident status is examined as of the date of the RPD hearing3. [8] The record contains conflicting information as to when the Appellant left Brazil. In his written narrative, he states that he left on XXXX XXXX, 2016.4 In his immigration forms detailing his itinerary, it would appear that he left Brazil in XXXX of 2016 and arrived in the United States in XXXX of 2016.5 The date was not confirmed or mentioned during the hearing, but the Appellant's former counsel argued that the Appellant had left Brazil for more than two years in his written submissions, without specifying what information he was basing this argument on. The RPD concluded that the date of departure from Brazil was XXXX XXXX, 2016, although it is unclear if the RPD was aware of the contradiction in the record. [9] I have considered the Appellant's other evidence. His passport does not contain a stamp from the United States. However, upon entering Canada, the Appellant had an I-94 document from the United States Department of Homeland Security dated September 12, 2016,6 which would indicate he entered the country near that date. Considering he would have travelled for weeks, and possibly months, through various countries between Brazil and the United States, I conclude that, on a balance of probabilities, a period of two years had elapsed since the Appellant left Brazil at the date of the hearing on XXXX XXXX XXXX 2018. Analysis of exclusion despite the loss of status [10] Although the Appellant had probably lost his permanent resident status by the time of the hearing at the RPD, my analysis with regards to the exclusion cannot end there. The Appellant's arguments suggest that the only test regarding the exclusion is to determine whether the appellant has lost his status. However, the Federal Court of Appeal, in the well-known Zeng7 case, has devised a more detailed test in order to determine if the exclusion should still apply when a person has lost their status in the former country of residence, which has become trite law. Given that the Appellant is represented by experienced counsel, I find that applying the Zeng test is not a new issue that requires me to give notice to the Appellant. [11] Having applied the test established by the Zeng case, I conclude that the exclusion applies to the Appellant even though he lost his permanent resident status in Brazil. The Appellant argued that he had lost his permanent status, but has submitted no arguments regarding the Zeng test. [12] The legal principles that must be applied to determine whether Appellant is excluded from refugee protection are as follows: "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? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts. "8 Reason for the loss of status [13] The Appellant testified that he left Brazil because he had lost his job and received threats. The RPD called the credibility of these threats into question, given that the Appellant had not claimed any risk or fear of persecution in Brazil in his immigration forms. His narrative bears no mention of his alleged problems in Brazil. I conclude that the RPD did not err in finding that this omission undermines the credibility of the alleged problems he had in Brazil, despite the Appellant's testimony. On a balance of probabilities, I find that the Appellant's decision to leave Brazil was voluntary, and this factor weighs in favour of exclusion from refugee protection. Can the appellant return to Brazil? [14] Given that the appellant has left Brazil for more than two years, and such was the case at the date of the RPD hearing, as explained above, I conclude that he cannot return to Brazil and this factor weighs against a finding of exclusion. The risk faced by the Appellant in Haiti [15] I find that the Appellant's documentary evidence and testimony regarding Haiti poses several credibility issues. This leads me to conclude that, on a balance of probabilities, the Appellant does not face a risk in Haiti and this weighs in favour of excluding him from refugee protection. [16] The Appellant alleges that his daughter, who was seven years old at the time, was raped on July 26, 2008. He says his life is threatened because he made a complaint to the police about the rape. [17] During the hearing, the RPD confronted the Appellant with a few inconsistencies in the evidence, which he was unable to explain. For one, given that the Appellant's daughter was born on XXXX XXXX, 2001, she would have been six years old at the time and not seven. Further, when examining the medical certificate,9 the Appellant provided no explanation as to why the first paragraph does not make grammatical sense, and the Appellant's daughter is referred to as a "petite adolescente" (small teenager), while she was not in her teenage years. [18] Upon further examination of the medical certificate, the rest of the text does not make sense either. The certificate states that an "AIDS test revealed that the patient was traumatized due to a painful situation that she underwent during the afternoon of July 25, 2008" (my translation). I find that the test that document says was carried out has no connection to the diagnosis. The diagnosis itself does not use medical terminology. Based on these numerous inconsistencies, I give no weight to this document and conclude that the Appellant's allegation that his daughter was raped at seven-year-old lacks credibility. [19] The RPD also questioned the Appellant as to what leads him to think that the bandits would still look for him ten years after he made the complaint. He responded that when he returned to Haiti from Brazil from XXXX 2015 to XXXX 2016, his mother warned him that the bandits were still around. However, he admitted that nothing happened to him directly. According to his own testimony, he was not directly threatened or attacked since he made a complaint to the police in 2008. Further, the Appellant testified that he returned to Haiti because someone informed him that his mother had died, only to find out, upon arrival, that his mother was in fact ill. When questioned by the RPD as to whether he thought to call a family member to confirm the news before he travelled, he responded that he hadn't thought of it. [20] I find that the Appellant has not demonstrated that he faces a serious possibility of persecution or, on a balance of probabilities, a risk to his life upon returning to Haiti. Further, his return to Haiti for two months undermines his credibility with regards to his fear of returning to Haiti. Canada's international obligations [21] According to the Federal Court of Appeal in Zeng, if Article 1E of the Convention were applied to the Appellant, he could be removed from Canada to his country of nationality, Haiti, without the benefit of a risk assessment. If this were to occur, there is a possibility of Canada indirectly breaching its international obligations.10 Given that I found that the Appellant would not be at risk if he were returned to Haiti, I find that Canada would not be in a position of breaching its international obligations. This factor weighs in favour of exclusion in this case. Overall balancing of factors [22] I find that the factors set out in Zeng, overall, weigh in favour of excluding the Appellant from refugee protection based on Article 1E of the Convention. The fact that the Appellant voluntarily left Brazil and does not, on a balance of probabilities, face a risk in Haiti, weigh most heavily in that balance. CONCLUSION [23] For the above reasons, I find that, ultimately the RPD decision is correct and the Appellant is excluded from refugee protection pursuant to Article 1E of the Convention, due to his permanent resident status in Brazil, which he voluntarily abandoned. [24] I therefore find that the Appellant is neither a Convention refugee nor a person in need of protection. [25] The appeal is dismissed. Zofia Przybytkowski Me Zofia Przybytkowski June 18, 2019 Date /ag 1 Pursuant to Article 1E of the Convention. 2 National Documentation Package, Haiti, 20 July 2018, and March 29, 2019, 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... Immigration and Refugee Board of Canada. 21 June 2018. ZZZ106127.FE. s. 2.4. 3 Majebi v. Canada (Citizenship and Immigration), 2016 FCA 274, para 7-8. 4 RPD Record, p. 14. 5 RPD Record, p. 38. 6 RPD Record, p. 49. 7 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118 (Zeng). 8 Zeng, supra note 7 at para. 28. 9 RPD Record, p. 56. 10 Zeng, supra note 7 at para. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-24507 RAD.25.02 (April 04, 2018) 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 04, 2019) Disponible en français