MB9-17806

RAD File No. / No de dossier de la SAR : MB9-17806 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 Ottawa, Ontario Appel instruit / entendu à Date of decision December 7, 2020 Date de la décision Panel Pascale Aubin Tribunal Counsel for the person who is the subject of the appeal Cristian Roa-Riveros 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] I dismiss the appeal. The appellant, XXXX XXXX XXXX XXXX, is a citizen of Haiti. [2] The appellant is alleging that he fears his uncle, a voodoo priest who practises black magic. In 2013, the appellant reportedly refused to become a voodoo priest because he is a Protestant Christian. Because of his refusal to take over as a voodoo priest, he alleges that he and his family have been threatened. The appellant alleges that he was dusted with voodoo powder in XXXX 2014. He reportedly took refuge in Cap-Haïtien. [3] In XXXX 2014, the appellant left Haiti for Brazil. The appellant alleges that in XXXX 2015, his father told him that his mother had been beheaded by criminals. The appellant states that his entire family moved to escape his uncle's attacks. The appellant alleges that he was attacked by Brazilians in 2016, so he left Brazil for the United States (US), transiting through other countries. [4] The appellant alleges that in XXXX 2017, his sister was stabbed by individuals connected to his uncle. In XXXX 2017, the appellant left the US for Canada due to the Trump administration's new immigration policy. [5] On July 18, 2019, the Refugee Appeal Division (RPD) rejected the appellant's claim for refugee protection on the grounds that he was not credible and that he is a person referred to in Article 1E of the Convention and that, consequently, he is neither a refugee nor a person in need of protection. The appellant is appealing that decision. He alleges that the RPD erred in excluding him from the Convention, that it was closed-minded and therefore did not take into account his personal circumstances with respect to the circumstances surrounding the contradictions, omissions and inconsistencies. [6] The determinative issues for the Refugee Appeal Division (RAD) are exclusion under Article 1E(a) of the Convention and credibility. ANALYSIS [7] My role is to examine all of the evidence and determine whether the RPD's decision is correct.1 [8] In his memorandum, the appellant alleges that the RPD did not properly apply Zeng2 with respect to his exclusion. He alleges that the RPD did not clearly address the issue of whether he has a status similar to that of Brazilian nationals. The appellant argues that the RPD engaged in a jumbled analysis, without questioning whether or not he had voluntarily lost his status, thereby failing to observe the principles procedural fairness. [9] I do not agree with the appellant's allegations. Nature of the status in Brazil [10] According to his testimony, the appellant was aware that his name was on the list of the 2015 ministerial decree and that he had paid the fees to acquire permanent residence;3 his statement that he had started the process is consistent with the copy of the resolution filed as evidence by the Minister stating that the appellant had been granted permanent resident status by the Brazilian authorities. Based on these assertions, the Minister's evidence and the appellant's passport including the stamp dated XXXX XXXX XXXX 2016, where it says in Portuguese "PERMANENTE," there is prima facie evidence that the appellant held permanent resident status in Brazil at the time of the hearing. According to his testimony, the appellant allegedly never claimed the permanent residence card because he left Brazil. In light of the foregoing, the RPD was entitled to conclude that, on a balance of probabilities, the appellant could have acquired permanent resident status, but did not do so. The appellant argues that the RPD did not intelligibly analyze whether the appellant had a status that was similar to that of nationals of the third country. As for the rights and obligations of permanent residents in Brazil, the documentary evidence indicates that the holder of a permanent residence permit has all the rights, privileges, duties and obligations of a citizen, except those rights, privileges, duties and obligations that a law or the Constitution explicitly attributes to citizenship. According to this same documentary evidence, there are certain restrictions on the rights of foreign nationals in Brazil, the most significant being disqualification from performing military service, from voting and from holding certain government positions. However, the Brazilian constitution guarantees foreign nationals residing in Brazil most of the rights that it guarantees Brazilian citizens, notably in the areas of education, health, work and social security. [11] Although the RPD did not refer to this objective documentary evidence in its reasons and failed to analyze the issue of the rights and obligations of nationals and of permanent residents in Brazil, this has no bearing on my decision, because on reading the documentary evidence, I note that holders of permanent resident permits enjoy the rights mentioned in the preceding paragraph. [12] In addition, the National Documentation Package (NDP) on Brazil states that permanent residents lose their status once they spend more than two years outside the country, unless they can justify their absence. Consequently, even if the appellant originally had permanent resident status in Brazil, I consider that the evidence in the NDP on Brazil establishes that, on a balance of probabilities, the appellant would have lost his permanent resident status in Brazil at the time of the RPD hearing. [13] Given that the appellant probably did not have permanent resident status in Brazil when he appeared before the RPD, the analysis required by the Federal Court of Appeal in Zeng4 provides that four factors must be considered in determining whether he is still excluded from the protection of the Immigration and Refugee Protection Act (IRPA). First, was the loss of status voluntary? Second, could the appellant return to Brazil? Third, what risk would he face if he returned to Haiti? Fourth, would Canada violate its international obligations by excluding the appellant from protection under the IRPA? Voluntary departure [14] In my view, the RPD correctly concluded that the appellant voluntarily left Brazil. The appellant states that he fears returning to Brazil because of the discrimination and persecution of Haitians and the ill-treatment he could be subjected to. [15] The case law has recognized that persecution is a sustained or systemic violation of basic human rights demonstrative of a failure of state protection.5 Thus, whether harmful actions constitute persecution will depend on the circumstances of each case.6 The documentary evidence in the NDP on Brazil notes that a high percentage of the Black ethnic population, Afro-Brazilians in particular, are the subject of discrimination.7 Nevertheless, the situation of Afro-Brazilians is complex and must be assessed taking into account their own particular context, the fact that there are regularly incidents of discrimination or racism, that some Haitians have been discriminated against, hit or even killed is not, in itself, sufficient to conclude that the appellant faces a serious possibility of persecution. [16] At the hearing, the RPD asked the appellant to describe the problems he had in Brazil.8 The appellant testified that Brazilians told him that Haitians had come to Brazil to steal their jobs.9 He stated these problems began in 2015, when the number of jobs in Brazil declined. He stated that he himself was targeted by these comments in 2016.10 [17] In addition, the appellant testified that coming back from work in the first week of XXXX 2016, a co-worker allegedly punched him in the shoulder and told him that he had stolen his job.11 The appellant stated that he then fled, as he was afraid of being more severely attacked.12 [18] Like the RPD, I note that in his amended Basis of Claim Form (BOC Form), the appellant had instead written that this event with the co-worker occurred on XXXX XXXX XXXX 2016, not in XXXX XXXX In the face of this contradiction, which was raised by the RPD, the appellant simply stated that he did not remember it, but what happened to him took place in XXXX 2016.13 I note that the appellant was unable to explain the differences in dates between his testimony and his amended BOC Form, which was filed on the day of the RPD hearing. I do not consider the information regarding the alleged attack in Brazil to be trivial, as it concerns the reasons that led the appellant to leave Brazil to save his life. I am also of the opinion that the explanation provided is unsatisfactory, as he should have been able to provide the same date with respect to the incident with his co-worker, which consequently undermines the appellant's credibility. [19] In addition, there are other contradictions in his testimony regarding the same event, which further undermine his credibility. When the RPD attempted to understand whether the appellant had been shoved by a single co-worker, the appellant stated that he did not know if there were other people around, but that he had only seen one co-worker at the time. The RPD therefore questioned the appellant in order to understand why his amended BOC Form indicates that he had allegedly been attacked by several former co-workers. The appellant stated that he had very little time to file the form, and that he had not yet received the information to submit it to his lawyer.14 [20] I cannot accept this explanation. Comparing the amended BOC Form and his testimony regarding the alleged attack, the story about being punched in the shoulder is clearly inconsistent. Although the appellant states that he had little time, the evidence on the record shows that the appellant contradicts himself when describing the circumstances of the alleged attack. The RPD's conclusion that there is an inconsistency between the amended BOC Form and his testimony regarding the alleged attack was correct. Therefore, the RPD did not err in concluding that the appellant did not establish, on a balance of probabilities, that he was attacked in Brazil. [21] Even if I were to accept the alleged event of the shoulder punch as credible, I would be of the opinion that the racial slurs and scuffle that the appellant experienced, while regrettable, do not amount to persecution. [22] The appellant did not show that his basic rights were violated in a sustained or systemic manner or that they would be were he to return to Brazil. During his testimony, he stated that he worked during his entire stay in Brazil from XXXX 2015 to XXXX 2016.15 He did not testify to having had housing, salary and safety issues. In this case, the racism and discrimination in Brazil are not sufficient to conclude that the appellant would face persecution in that country. Thus, I conclude that the appellant's departure was voluntary. Returning to Brazil [23] Whether the appellant could return to Brazil as of the date of the RPD hearing is uncertain. He would have first needed to start the process with the Brazilian authorities to reactivate his permanent resident status, if his extended absence from the country had resulted in the termination of the status. There is no indication in the evidence that the appellant took any steps in this regard. I am of the opinion that, on a balance of probabilities, it is therefore unlikely that he would be able to return to Brazil and the RPD's conclusion is correct. Risk of returning to Haiti Role of a voodoo priest [24] In terms of the risk that the appellant would face should he return to Haiti, the RPD's analysis is correct. I agree with the RPD that the appellant had difficulty answering the question about what voodoo priests were called in Haiti. I note that the appellant testified that he did not know the name given to voodoo priests.16 Although there are several names used for voodoo priests in Haiti, the appellant should have been able to provide his uncle's title, as indicated in his amended BOC Form, especially since his claim is based on the role his uncle wanted him to play as a voodoo priest. [25] I am of the opinion that the appellant appeared to have difficulty expressing himself when answering the RPD's questions about his uncle's role, or at least that is what stood out when listening to the recording of the hearing. I am of the view that the negative inference drawn by the RPD regarding the appellant's credibility on this point was correct. His foot operation [26] When questioned by the RPD as to what he meant by having been hit, the appellant stated that his uncle had sent him an evil spirit by giving him a foot disease.17 He explained that his foot had become swollen, and that he still has scars. In order to better understand, the RPD asked if he had received any treatment, and the appellant testified that he could not explain how the doctor had treated him.18 The RPD also questioned the appellant as to why he had been operated on, and he testified that it was the expertise of the doctor who saw the inflammation and decided to operate on him.19 I note that the appellant's responses were very vague as to the details of the treatment of his foot after being dusted with his uncle's powder. [27] Although the appellant testified that he was [translation] "struck" by an evil spirit, that his foot was swollen and that he underwent surgery, he was unable to demonstrate, on a balance of probabilities, that his uncle injured him with his voodoo powers. I am of the opinion that the link between the injury to his foot and the voodoo spell performed by his uncle was not established. The appellant submitted only that he was operated on according to the doctor's expertise, but he himself did not seem to have a clear idea about this, which undermines his credibility. Murder of his sister in XXXX 2017 [28] I note that although the appellant testified that his uncle murdered his sister, he makes no mention of this murder in his original BOC Form. I also note that in the amended BOC Form, the appellant states that his sister was stabbed on XXXX XXXX XXXX 2017, at approximately 8:30 p.m., whereas the death certificate states that his sister died at 4:00 a.m. When confronted by the RPD why there are two versions of his sister's time of death, he stated that it may not be consistent with what is stated in the document, but that the substance of the story is true.20 In my opinion, this explanation is unsatisfactory and undermines his credibility. [29] Without being able to establish the cause of the injury to his foot, the murder of his sister, and to truly understand the role of voodoo priest that his uncle was imposing on him, it is difficult to assess the prospective risk to the appellant should he be forced to return to Haiti six years later. I cannot conclude that the appellant faces a serious possibility of persecution because of his uncle's voodoo powers or that it is likely that he would be subject personally, on a balance of probabilities, to a risk to his life or to a risk of cruel and unusual treatment. [30] Lastly, I am not of the opinion that Canada would be violating its international obligations by excluding the appellant from protection under the IRPA, given that the evidence does not establish a serious possibility of persecution on one of the Convention grounds in either Brazil or Haiti. Appellant's personal circumstances [31] The appellant criticizes the RPD for having been closed-minded and not taking into account his personal situation and his psychological and emotional state, which played a significant part in the circumstances surrounding the contradictions, omissions and inconsistencies. [32] After listening to the recording of the RPD hearing, I note that the appellant was composed and calm. I note that the appellant did not state that he felt stressed, and he did not ask that accommodation measures to be taken during the hearing. I agree that if there were some element of nervousness, which I could not detect in listening to the hearing, this could not explain the lack of detail regarding the alleged threats, which undermines the credibility of his story. I also am not of the opinion that the RPD was closed-minded. CONCLUSION [33] The appellant could have acquired permanent resident status in Brazil, which would have given him nationality rights in that country within the meaning of Article 1E of the Convention, but he did not do so. He voluntarily lost this status. The appellant would not face a serious possibility of persecution by reason of his race or nationality if he were to return to Brazil. The appellant would not face a serious possibility of persecution by reason of his political opinion in his country of origin, Haiti, nor would he be subjected personally, on a balance of probabilities, to a risk to his life or to cruel and unusual treatment should he return to that country. In the circumstances, Canada's international obligations are not violated by declaring that the appellant is excluded from protection under the IRPA. The RAD has weighed all the factors in Zeng and they weigh in favour of excluding the appellant under Article 1E of the Convention. I conclude that the appellant is excluded from Canada's protection and that the RPD's conclusion is correct. [34] For these reasons, I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Pascale Aubin Pascale Aubin December 7, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. 3 Recording of the hearing held before the Refugee Protection Division (RPD), 3:06 to 8:54. 4 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. 5 Ranjba v. Canada (Minister of Citizenship and Immigration) 2003 FC 637 and Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (C.A.). 6 Sztojka, Andras v. Canada (Minister of Citizenship and Immigration), 2011 FC 1202. 7 RPD-1, Exhibit 3, National Documentation Package, March 29, 2019, Tab 2.1, Brazil. Country Reports on Human Rights Practices for 2018, March 13, 2019, United States. Department of State, March 19, 2019. 8 Recording of the hearing held before the RPD on June 27, 2019, at approximately 9:20. 9 Recording of the hearing held before the RPD on June 27, 2019, 9:38 to 10:02. 10 Recording of the hearing held before the RPD on June 27, 2019, 10:30 to 11:50. 11 Recording of the hearing held before the RPD on June 27, 2019, 12:13 to 13:40. 12 Ibid. 13 Recording of the hearing held before the RPD on June 27, 2019, 18:35 to 20:24. 14 Recording of the hearing held before the RPD on June 27, 2019, 20:46 to 23:54. 15 Recording of the hearing held before the RPD on June 27, 2019, at approximately 13:36. 16 Recording of the hearing held before the RPD on June 27, 2019, 39:55 to 40:00. 17 Recording of the hearing held before the RPD on June 27, 2019, 31:07 to 33:00. 18 Recording of the hearing held before the RPD on June 27, 2019, 32:37 to 33:23. 19 Ibid. 20 Recording of the hearing held before the RPD on June 27, 2019, 1:08 to 1:10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-17806 RAD.25.02 (January 2020) Disponible en français 4 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