VB7-00304

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 File No. / N° de dossier de la SAR : VB7-00304 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision October 31, 2017 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) N/A Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] These are my reasons for denying the appeal of XXXX XXXX XXXX XXXX (the "appellant") of Brazil from a decision of the Refugee Protection Division (the "RPD") to reject his claim for refugee protection. The appellant claims to face persecution, a danger of torture, a risk to life, or a risk of cruel and unusual treatment if he returns to Brazil. [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (the "Act" or "IRPA"),1 the Refugee Appeal Division (the "RAD") dismisses the appeal and confirms the determination of the RPD, namely, that the appellant is not a "refugee" under section 96 or a "person in need of protection" within the meaning of section 97 of the IRPA. [3] The determinative issue in this case is whether the RPD erred in its finding that a viable internal flight alternative ("IFA") exists for the appellant in Rio de Janeiro. BACKGROUND [4] The appellant fears persecution and harm in Brazil on the basis of being a gay man and due to his having the human immunodeficiency virus ("HIV") virus. He also fears he will be targeted by the XXXX XXXX XXXX XXXX XXXX XXXX XXXX a criminal organization in Brazil. As a child the appellant suffered sexual abuse from his elder brother and physical abuse from his father. The appellant suffered loss of employment which he believes came about because of a homophobic supervisor and he has been subjected to homophobic name calling. [5] While living in Itapevi in 2014 the claimant was the subject of extortion by members of the criminal XXXX gang and in 2016 he was robbed by XXXX gang members. He ceased making extortion payments when he closed his business and fears retaliation. In 2016 he witnessed a domestic altercation involving a member of the XXXX and he was threatened by the XXXX member. This later incident provoked the appellant to come to Canada as a tourist and then to make a refugee claim. [6] After filing his refugee claim but before his RPD hearing, the appellant learned that he is HIV positive and he believes he will be persecuted in Brazil because of the stigma associated with HIV positive gay men in Brazil. After filing his claim the appellant also amended his Basis of Claim form ("BOC") to add that he fears the XXXX because of his prior association with an organization called "XXXX." The appellant learned that a business owner associated with XXXX was murdered by the XXXX. APPELLANT'S ARGUMENTS [7] The appellant argues that there is new evidence I should consider. He also argues the RPD erred in finding that Rio de Janeiro is a viable IFA location given the appellant's profile; that the RPD failed to properly consider evidence of the effect of access to and complications with HIV treatment in the IFA location; that the RPD failed to properly consider the risk posed to the appellant by the criminal XXXX gang in the IFA location; and, that the RPD improperly required that the appellant establish a degree of harm amounting to persecution when analysing the IFA location. [8] The appellant has submitted "new evidence" in his Memorandum of Arguments which he seeks to submit under subsection 110(4) of the Act, specifically, a letter from the appellant's physician and several media articles. The appellant has also presented a document2 from the Immigration and Refugee Board's ("IRB's") National Documentation Package (NDP) for Brazil which was not before the panel at the time it rendered its decision. [9] I find that the letter from the appellant's physician3 was drafted and sent to the appellant following the rejection of his claim. However, the letter does not indicate when the appellant came under the care of this physician. In his amendment to his BOC4 the appellant indicates that he was "informed" of his HIV positive diagnosis in XXXX XXXX, 2016. There is a medical letter dated XXXX XXXX, 2016 and signed by a different physician that was disclosed by the appellant before his hearing which is an assessment of the appellant's "new" HIV status.5 The appellant was represented by counsel at the hearing and the appellant had been notified that IFA would be an issue at the hearing. I note that in his post-hearing submissions the appellant's counsel had already raised the issue of "interruptions" of HIV positive treatment6 and I find it was reasonably open to the appellant to obtain and include this letter from his physician at that time or at the hearing. [10] In regard to the content of the letter, I find the information therein introduces an opinion of the physician that assumes the appellant's HIV treatment would be interrupted because of a return to Brazil. This opinion appears to have been formed without the physician being aware of what HIV medications would be available to the appellant in Brazil. The lack of factual data in this regard brings into question the relevance and probative value of this proposed new evidence. Given these findings, I conclude that the evidence presented in the physician's letter was reasonably available to the appellant prior to the rejection of his refugee claim. Therefore, this document does not meet the requirements of subsection 110(4) of the Act and it is not accepted. [11] The media articles submitted by the appellant are also not accepted as new evidence.7 * Brazil's Biggest Gang Challenging Rival's Control in Rio, Insight Crime, dated December 5, 2016; * PCC Consolidates Their Domain in Rio de Janeiro, Defesanet, dated December 15, 2016; * Brazil sees murders soar in Rio, drop in Sao Paulo, AFP, dated December 23, 2016; * Rio de Janeiro elects mayor who said homosexuality is 'evil', Independent, dated November 2, 2016. * New Mayor of Rio Says Homosexuality Caused By Botched Abortions, Newnownext, dated January 2, 2017. * Gay couple says they have been fired from work after forming a union in Goiania, Globo, dated November 17, 2016. These articles are all dated prior to the date of rejection of the appellant's case before the RPD and therefore could have reasonably been available and submitted to the RPD post hearing but prior to the rejection of the claim and consequently do not meet the requirement of subsection 110(4) of the Act. [12] I have considered the cited Response to Information Request ("RIR") document8 noted by the appellant along with other documents published by the IRB in the current NDP as part of my independent analysis of the evidence in regard to whether a viable IFA exists for the appellant in Brazil. [13] Given I have not accepted the documents submitted by the appellant as new evidence it is not necessary for me to consider whether to conduct a hearing under subsection 110(6) of the Act. ROLE OF THE RAD [14] With respect to questions of fact, mixed fact and law and law, I have applied the standard of correctness as per Huruglica.9 In assessing issues involving credibility of oral testimony, I have applied the RAD's modified standard of reasonableness.10 ANALYSIS The RPD decision [15] In its decision the RPD accepted the appellant's evidence as credible. Specifically, the RPD accepted that the appellant is a homosexual man who has contracted the HIV virus and the RPD accepted that the events in Brazil as alleged by the appellant occurred. [16] The RPD found that the appellant has an IFA in Rio de Janeiro, Brazil and therefore is neither a Convention11 refugee nor a person in need of protection. The IFA finding is determinative of the appellant's refugee claim under both sections 96 and 97 of IRPA and is also dispositive of this appeal. Even if the RPD erred in its analysis of state protection, nexus, and generalized risk, the appellant's refugee claim would nevertheless fail on the basis of IFA. [17] IFA arises when a claimant may have a well-founded fear of persecution in the home area of his or her country, but can safely relocate to another part of the country. The test to be applied in determining whether there is an IFA is two-pronged: (i) there is no serious possibility of the claimant being persecuted or subjected, on a balance of probabilities, to a danger of torture or to a risk to life or of cruel and unusual treatment or punishment in the proposed IFA area; and, (ii) conditions in the IFA area must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there. Risk to the appellant from the criminal organization XXXX and/or the appellant's brother in the IFA location. [18] In its reasons for decision the RPD concluded that, "the XXXX would not be motivated to search for the claimant, due to the claimant's description of his past interactions with this organization."12 The appellant argues that the RPD "failed to properly consider the risk" to the appellant in its assessment of the danger posed by the XXXX in Rio de Janeiro. [19] This issue was raised by the appellant in his counsel's post-hearing submissions and considered by the RPD in its decision. Indeed the arguments raised in the appellant's memo in this regard includes a reiteration of the post-hearing submissions which have already been considered by the RPD. [20] I accept that the XXXXis a powerful criminal organization in Brazil with connections to criminal organizations in the IFA location.13 However, in my independent analysis of the evidence in this regard I do not find that the XXXX would be motivated to track down and harm the appellant in Rio de Janeiro. [21] It is the appellant's evidence that he did not agree to provide catering and logistical services to the XXXX,14 and that he stopped making extortion payments to the XXXX when he closed his business.15 However, I find there is no clear evidence that the XXXX sought to retaliate against the appellant for these reasons although the appellant believes that he was "targeted" by the XXXX and that this is the reason his business failed. This finding is supported by the evidence that the appellant lived in his home for several months after he stopped making the extortion payments without direct retaliation. He also lived in Recife for some months after leaving Itapevi and before coming to Canada without being bothered by the XXXX. [22] The appellant witnessed a domestic dispute involving a local XXXX leader and received a warning from the XXXX leader that the XXXX was trying to "catch" him and he was later warned by another neighbour that this XXXX local leader is homophobic and wanted to kill the appellant. However, there is no evidence this warning was followed up by the XXXX pursuing the appellant to harm him. [23] The appellant was robbed by persons he believed were part of the XXXX. However, there is no evidentiary connection between this incident and the other incidents involving the XXXX and I am in agreement with the RPD that this robbery was a random criminal incident where the appellant was not targeted for any reason other than his being suspected of having either money or valuable possessions. [24] The appellant was associated with XXXX, a social-religious organization in Itapevi that was opposed by "XXXX" a XXXX leader and local politician. However, nothing occurred to the appellant in Brazil in regard to his association with XXXX. [25] There is no evidence that the XXXX has searched for the appellant since he left Itapevi some three years ago nor is there evidence that XXXX is aware of the appellant's current whereabouts. Finally, there is no evidence that XXXX has the ability to track down the appellant in the IFA location. [26] The RPD did not find that the appellant has established that the XXXX wants to harm the appellant because of his sexual orientation. I find the documentary evidence is clear in describing the XXXX as a major criminal organization in Brazil.16 A local XXXX leader within the XXXX may have had mixed motivations in regard to potentially harming the appellant in Itapevi. However, I find no evidence to indicate that the XXXX would view the appellant as a threat because of his homosexuality or that they would pursue the appellant in the IFA location for this or any other reason. I do not find that the appellant fled Itapevi to avoid persecution or harm at the hands of the XXXX because of his sexual orientation. [27] The RPD did an analysis of the threat the appellant states would emerge from his brother if his sexual orientation should become known because the appellant accessed psychological support or support from family members who know about his sexual orientation. I find that since they became adults, there is no evidence that the appellant's brother has posed a threat to the appellant. I do not find that the appellant has established that if he came out as a homosexual to his family that his brother would be so threatened by the appellant that he would seek him out and harm or kill him. I find this allegation from the appellant to be purely speculative. I do not find in the evidence that psychological support would be denied to the appellant for this or any other reason in the IFA location. [28] I find that the appellant has failed to establish that the XXXX is motivated to track down the appellant in Rio de Janeiro. I make the same finding as the RPD in regard to the allegation of risk to the appellant from his brother in the IFA location. Risk to the appellant in the IFA location because of his sexual orientation. [29] There is considerable documentary evidence17 to conclude that there are security concerns for Lesbian, Gay, Bisexual, Transgender, Queer ("LGBTQ") persons in Brazil and Rio de Janeiro is no exception. This evidence establishes that there are patterns of violence and sadly includes what appears to be a growing violence and homicide rate of members of this community in Brazil. However, in the case of the appellant, there is insufficent evidence to establish that he was percecuted on the basis of his sexual orientation in Brazil or that he would be placed at risk of such persecution or harm in the IFA location for this reason. In his arguments the appellant asks the RAD to look at a RIR18 that was not before the RPD at the hearing. I have reviewed this document as well as the "sexual minorities" section of the most current NDP and the documentation and submissions submitted at the RPD hearing. [30] In reviewing this material, most of which was also reviwed by the RPD, I agree with the appellant's argument that the RPD has taken a somewhat narrow view of the document19 entitled "LGBT people living in poverty in Rio de Janeiro." This document does provide an overview of the situation of LGBTQ persons beyond those "living in poverty" in Rio de Janeiro. However, I find that this document is general in nature and does not establish that the appellant would face more than a mere possibility of persecution on the basis of his sexual orientation if he relocated to Rio de Janeiro. [31] In my review of this and other documents I also do not find that the documentation establishes that a relocation to the IFA location would not be viable because of the level of violence against members of the LGBTQ community. Homosexuality is not illegal in Brazil and same sex couples have been recognized by the Constitutional Court since a 2011 ruling.20 Rio de Janeiro is one of the states in Brazil that has enacted anti-discrimination policies including discrimination based on sexual orientation although the operational effectiveness of these policies is mixed.21 While limited, there are support services in Brazil for LGBTQ persons. In Rio de Janeiro there is also a state-run program entitled "Rio without homophobia" which trains police and others on LGBTQ rights.22 [32] The evidence in regard to the availability of state protection for the appellant is linked to a local circumstance where the appellant's sexual orientation was not established by police as the motivation for a robbery in Itapevi. While I can accept that there are cases where police officers or former police officers may be involved in some of the homophobic violence in Brazil, I do not find that the evidence establishes that state authorities in Rio de Janeiro are systematically involved in the persecution of homosexual men or HIV positive individuals or that such individuals are denied state protection. [33] I do not find the appellant has discharged his responsibility to demonstrate that the risk of persecution or harm he fears because of his sexual orientation would be faced by him in the IFA location of Rio de Janeiro. IFA and the HIV positive status of the appellant [34] The appellant argues23 that Rio de Janeiro is an "objectively unreasonable" IFA location because of the inability of the appellant to access HIV treatment and medication and psychogical care and the levels of discrimination against sexual minorities. I do not find the appellant has established this argument with clear evidence. [35] I have considered paragraphs 54 and 55 of the United Nations High Commissioner for Refugees Handbook, which state: 54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities. 55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.24 [36] There are more than 700,000 persons living with the human immunodeficiency virus infection and acquired immune deficiency syndrome ("HIV/AIDS") in Brazil.25 I have considered the availability of medical treatment for victims of HIV positive persons in Brazil and I find that the preponderence of the evidence does not indicate systemic discrimination or selective witholding of treatment from these persons. I do not find evidence that a short term (days or weeks) interupption in HIV positive treatment while he relocates to the IFA location would place the appellant at a risk of serious harm.26 [37] In examining the evidence before the RPD I find there is stigma attached to homosexual HIV positive victims in Brazil.27 However, there is no reason to believe that the claimant would be singled out and denied treatment for his HIV positive condition in Brazil which despite this societal stigma, has made such treatment freely avaible to HIV victims for several decades. In addition it is not for the RAD to judge the Brazilian health care delivery system in the context of Canada.28 [38] I find that the appellant has not provided evidence to establish that he would be stigmatized to the level of persecution and that it would result in the denial of a core human right. [39] Rio de Janeiro is a large modern city with more than 12.9 million inhabitants and many millions more living in the wider state area. There exists public and private health care for HIV positive victims that would be accessible to the appellant Rio de Janeiro. [40] In addition the appellant is a well educated young enterprising man who, despite his early family circumstances, has successfully established himself in life as a property and business owner and there is every reason to believe that he would be able to find employment or create his own business if he should relocate to Rio de Janeiro notwithstanding his HIV positive diagnosis. [41] The appellant learned of his HIV positive diagnosis soon after arriving here in Canada and there can be no doubt that this would have been a shock and major disappointment to him. In reviewing the evidence in this case, including listening to the audio tape of the hearing, I acknowledge these circumstances and I am sympathetic to the concern of the appellant about the prospect of changing his HIV positive treatment regime and treament practicioners from what he is experiencing in Canada and seeking medical care in a community where he has no experience with the health care system for HIV positive patients. Neither the RPD nor the RAD has a humanitarian and compassionate jurisdiction to exercise in this regard. However, I note that Canada has legislated such a provision in subsection 25(1) of IRPA under the jurisdiction of the Minister. CONCLUSION [42] The appellant has an IFA in Rio de Janeiro, Brazil. Pursuant to paragraph 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Richard Jackson" October 31, 2017 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Appellant's Record, National Documentation Package (NDP), Brazil, January 31, 2017, Item 6.2 Response to Information Request (RIR) BRA105487.E. 3 Appellant's Record, p. 17A. 4 Refugee Protection Division Record (RPDR), p. 122. 5 RPDR, pp. 170 and 171. 6 RPDR, p. 549. 7 Appellant's Record, pp. 18-48. 8 Appellant's Record, NDP, Item 6.2 (RIR) BRA105487.E. 9 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 10 As per X (Re), 2017 CanLII 33034 (CA IRB). 11 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention. 12 RPD Decision, para 18. 13 RDPR, NDP, Items 7.2 and 7.5. 14 RPDR, p. 374. 15 Basis of Claim narrative. 16 Appellant's Record, NDP, Item 6.2 (RIR) BRA105487.E. 17 NDP, March 31, 2017, Item 6.1, Item 6.2, Item 6.3, Item 6.4, Item 6.5. 18 Appellant's Record, NDP, Item 6.2 (RIR) BRA105487.E. 19 RPDR, NDP, Item 6.1. 20 RPDR, p. 526. 21 RPDR, p. 525. 22 NDP, Item 6.2 (RIR) BRA105487.E. 23 Appellant's Record, Appellant's Memorandum, para 94. 24 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention, see also para. 53. 25 RPDR, World Fact Book, p. 421. 26 RPDR, pp. 395 and 396. 27 RPDR, US Department of State Report, p. 451. 28 Mare v. Canada (Minister of Citizenship and Immigration), 2001 FCT 450 and Tchiegang v. Canada (Minister of Citizenship and Immigration), 2003 FCT 249. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB7-00304 RAD File No. / N° de dossier de la SAR : VB7-00304