TB9-05638

RAD File / Dossier de la SAR : TB9-05638 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision June 18, 2019 Date de la décision Panel Jillan Sadek Tribunal Counsel for the person(s) who is(are) the subject of the appeal Monique Ann Ashmalla 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] XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Haiti. He alleges fear of persecution in Haiti as a result of being forcibly recruited to work for Parti Haitien Tet Kale (PHTK)-affiliated criminals. The Appellant appeals a decision of the Refugee Protection Division (RPD) excluding him from refugee protection on the basis of article 1E of the Convention Relating to the Status of Refugees as he was eligible for permanent residence in Brazil. The Appellant disputes the exclusion analysis and asserts that the RPD erred procedurally by failing to take into account his written submissions. [2] For the reasons that follow, the appeal is allowed and the decision of the RPD is set aside. As I cannot reach a determination without hearing evidence that was before the RPD, this matter is sent back for redetermination by a differently constituted panel of the RPD.1 REQUEST FOR ORAL HEARING DENIED [1] The Appellant has requested that I hold an oral hearing. Before I can hold an oral hearing, there must be new evidence, described in subsection 110(4) of the Immigration and Refugee Protection Act, admitted on appeal. Since no new evidence has been tendered or admitted, I cannot hold a hearing. ROLE OF THE RAD [3] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact, or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony if I find that the RPD had a meaningful advantage in the circumstances.2 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [4] The Appellant's allegations are set out in his Basis of Claim (BOC) Form3. In summary, he alleges that soon after he returned to Haiti in XXXX 2016 after living in Brazil for two and a half years, he was targeted by PHTK thugs who wished to recruit him to participate in activities such as kidnapping. The Appellant alleges he refused to work for the PHTK thugs and was himself kidnapped and badly beaten. He alleges that he was released only when he promised to work for them. The Appellant alleges he then decided to escape from Haiti, travelling to the Bahamas and then to the United States. The Appellant lived in the U.S. from XXXX XXXX, 2016 to XXXX XXXX XXXX 2017. He did not claim asylum in the U.S. He entered Canada on XXXX XXXX XXXX 2017 and made a claim for refugee protection. [5] The Appellant attended a refugee determination hearing on January 15, 2019. The Minister had intervened in writing as the Appellant's name and identification number were on the list of 43 781 Haitian nationals eligible for Permanent Resident status in Brazil as of the date of the November 2015 Ministerial Act.4 The Minister did not provide any evidence that the Appellant applied for his Foreign Identity Card (CIE) on the basis of his name being on the list. The Appellant testified he was not aware his name was on the list and did not check the status of his application for permanent residence in Brazil prior to leaving in XXXX 20165. At the end of the hearing the member allowed Counsel to make his submissions in writing and specified a time frame of 10 days. Written submissions were received on January 25, 2019. In a written decision rendered on January 31, 2019, the RPD rejected the Appellant's claim for refugee protection on the basis of the Appellant failing to avail himself of permanent residence in Brazil despite the fact that he was eligible at the time he fled Haiti in XXXX 2016. The Appellant was excluded on the basis of article 1E of the Convention Relating to the Status of Refugees. On February 26th, 2019 Counsel received his own written submissions returned in the mail from the IRB with a note indicating that the decision was rendered before they were received and they were therefore not taken into account. [6] I have conducted an independent assessment of the evidence, the Appellant's testimony before the RPD, the RPD decision, as well as the Appellant's submissions, and find that the RPD erred in areas material to the determination of the claim for the reasons discussed below. These errors are fatal to its decision. It is therefore unnecessary for me to address all of the arguments raised by the Appellant on appeal. The RPD erred in not taking into account the Appellant's written submissions [7] Some sort of administrative error appears to have occurred which meant that that RPD member did not receive and take into consideration the Appellant's written submissions prior to rendering his decision on January 31, 2019, though they were received on January 25, 2019. [8] I may remedy this error by taking the submissions into account now from a procedural fairness standpoint. However, as, I agree with Counsel's submissions on the errors with regards to the Zeng test and the determinative issue is the exclusion and because that aspect of the RPD decision is flawed, the RPD's decision cannot be upheld in any event. The Appellant ought not to have been excluded without assessing the risks he may face in Haiti [9] The RPD member did not asses the Appellant's allegations with regards to Haiti. He made this clear at the end of the hearing when allowing the Appellant's counsel to make submissions in writing. The RPD member specified on the record: "It may well be that I agree with you on that (referring to exclusion), in which case the proper thing to do would be to reopen on the merits I would suggest."6 The RPD member did not question the Appellant with regards to what occurred in Haiti and the Appellant's Counsel only briefly asked a few questions eliciting very few details. In my opinion, the evidence on file and presented at the hearing is insufficient to satisfy me that the Appellant has been truthful with regards to any risks he may face in Haiti. The Appellant's supporting documents (a medical certificate and two police reports) are suspect, however, as I cannot hold a hearing to put my concerns to the Appellant or ask questions about his Basis of Claim narrative, I am unable to conclude if they are credible or not. [10] According to the Federal Court of Appeal in Zeng, when examining the legal test to apply in 1E determinations, if a claimant was not a permanent resident at the date of the hearing before the RPD, various factors need to be considered and balanced before a claimant may be excluded, these are: (a) the reasons for the loss of status (voluntary or not), (b) whether the claimant can return to the third country; (c) the risk the claimant would face in the home country, (d) Canada's international obligations, e) any other relevant factors.7 [11] In this case there is no question that the claimant was a permanent resident of Brazil at the date of his RPD hearing (January 15, 2019). The Appellant had left Brazil in XXXX 2016, thus, even if he had completed the necessary steps to obtain permanent residency before leaving Brazil, which he denies, the objective documentation specifies that if a permanent resident is outside of Brazil for more than two years, that person would lose their status.8 Thus, as the RPD failed to consider the risks the Appellant may face in Haiti, the RPD was wrong to exclude him from refugee protection. A decision cannot be substituted by the RAD [12] I conclude that the above error is fatal to the RPD decision. I have credibility concerns with respect to aspects of the Appellant's claim against Haiti, such as the authenticity of his supporting documents and the credibility of his narrative. However, I cannot properly weigh these credibility concerns without rehearing the evidence that was before the RPD. CONCLUSION [13] After conducting an analysis of the record, I find that the findings made by the RPD are insufficient to maintain the determination that the Appellant is excluded from refugee protection. [14] As such, I allow the appeal. I am unable to reach a final determination without rehearing evidence. Therefore, pursuant to paragraph 111(1)(c) of the IRPA, this matter is remitted to the RPD in accordance with the directions noted below. DIRECTIONS [15] I remit this file to the RPD with the following directions: * The claim will be reheard by a different Member of the RPD. (signed) "Jillan Sadek" Jillan Sadek June 18, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c.27, para. 111(1)(c)(IRPA). 2 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 3 Basis of Claim form, RPD record, p. 13 -27 4 Notice of Intent to Intervene, RPD Record, p. 60-64 5 Minute 0h53 of the recording of the RPD hearing of January 15, 2019 6 Minute 1h47 of the recording of the RPD hearing of January 25, 2019 7 Canada v. Zeng. 2010 FCA 118 8 RPD-1, RPD Record, Exhibit 4, National Document Package 3 October 2017, Document 3.7, ZZZ105986.FE Brazil and Haiti: Resident status of Haitian citizens in Brazil, including their rights and responsibilities (2010-September 2017), IRB, 3 October 2017 ) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-05638 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français