MC0-01410

RAD File No. / No de dossier de la SAR : MC0-01410 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 March 30, 2021 Date de la décision Panel Pascale Aubin Tribunal Counsel for the person who is the subject of the appeal Murhula Jugauce Mweze 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. [2] The appellant, XXXX XXXX XXXX XXXX, is a citizen of Haiti. [3] The appellant stated that he owned and operated a prosperous small business in Haiti that sold XXXX XXXX and XXXX XXXX to people in need. [4] The appellant stated that his situation made some people jealous and that this would put his life in danger if he returned to Haiti. The appellant claimed that he belonged to a political party and that these people would be able to find him anywhere in Haiti. [5] On the night of XXXX XXXX XXXX 2013, the appellant was at home with his son when some masked men broke into his home and assaulted them. The appellant allegedly suffered injuries to his back and shoulder, while his son was in a coma for more than a year before succumbing to his injuries in 2014. The police did not conduct an investigation. They told the appellant to change districts. Following this incident, the appellant and his family continued to receive death threats over the telephone. [6] On XXXX XXXX XXXX 2014, the appellant left Haiti and went to Brazil on a four-year visa. In Brazil, he lived in an area where people were racist. He decided to go to the United States on XXXX XXXX XXXX 2016. He arrived in Canada and claimed refugee protection on August 18, 2017. [7] On November 27, 2019, The Refugee Protection Division (RPD) rejected the appellant's refugee protection claim on the grounds that he was neither a Convention refugee nor a person in need of protection. [8] The determinative issue for the Refugee Appeal Division (RAD) is exclusion under 1E. [9] The appellant argues that the RPD did not correctly apply the criteria set out in Zeng. He submits that the RPD did not correctly consider and analyze the incidents of discrimination, which occurred over the course of more than two years, as valid reasons for leaving Brazil. The appellant submits that the RPD failed to examine all the evidence on the situation of Haitians in Brazil. The appellant submits that the RPD also failed to consider the risk to which he would be subjected upon return to Brazil or Haiti. [10] I do not agree with these allegations. [11] The RPD concluded that the appellant is a person described in Article 1E of the Convention. In analyzing the applicability of the exclusion clause, the RPD correctly relied on Zeng, which prescribes the following exclusion test under Article 1E of the Convention: 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. [12] I am of the opinion that the RPD was correct to conclude that permanent resident status in Brazil grants its holder the rights and obligations of a national within the meaning of Article 1E of the Convention. Furthermore, even presuming that the appellant had lost that status, I agree with the RPD that the appellant should nevertheless be considered as being excluded from the protection of the Immigration and Refugee Protection Act (the Act). The RPD did not err in applying the factors to consider according to Zeng. The appellant has also failed to establish that he would likely be personally subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment. Nature of status in Brazil [13] The appellant's passport contains a stamp indicating that he holds a permanent visa. During the hearing, the appellant testified that he had permanent resident status in Brazil. Furthermore, the National Documentation Package (NDP) clearly indicates that those who have permanent resident status in Brazil have economic, social, cultural, health and education rights that are substantially similar to those of Brazilian citizens.1 [14] In my opinion, this evidence establishes, on a balance of probabilities, the appellant's permanent resident status in Brazil. The RPD therefore did not err in concluding that the appellant had permanent resident status in Brazil. Rights and obligations conferred by permanent residence in Brazil [15] The Brazilian constitution2 is quite clear that permanent residents of Brazil have all of the same rights and obligations as Brazilian citizens with the exception of the right to vote, notably in the areas of health, education and access to the job market.3 While this does not correspond to the appellant's alleged experiences, the fact remains that these were rights that he could assert. Voluntary departure [16] The appellant stated that he fears returning to Brazil because of the racial discrimination and the persecution or mistreatment to which he could be subjected. [17] According to the case law, persecution requires an infliction of repeated acts of cruelty or a particular course or period of systematic infliction of punishment.4 Discriminatory acts may constitute persecution where those acts are "sufficiently serious and occur over such a long period of time that it can be said that the claimants' physical or moral integrity is threatened."5 [18] During the hearing, the RPD questioned the appellant in order to understand why he left Brazil after having obtained permanent resident status.6 The appellant testified a number of times that he wanted to practise his profession in Brazil but that it was very difficult because he is Black.7 The appellant stated that he applied for work but that people did not like the way he looked and did not hire foreigners.8 [19] To better understand the appellant's reasons for leaving Brazil, the RPD asked him more specifically if it was not because he was unable to practise his profession, to which he responded yes. He again stated that he wanted to work in a job related to his profession, but that things were hard for him and he also had responsibilities.9 He also testified that jobs were given instead to other foreigners, such as Italians and people from England.10 The fact that the principal appellant had difficulty finding work in his profession is the result of a number of factors, notably the economic context in Brazil in 2016, and cannot be considered grounds for an involuntary departure. I note that the appellant was nevertheless able to work as a mason for a year in Brazil.11 [20] Although the work situation can be difficult for some Haitians in Brazil, the evidence does not support the conclusion that their right to work is being violated, but rather that there is a shortage of work due to the country's economic situation. As for the appellant, he had a job and testified that he left it because he wanted to practise his profession. [21] He also testified that he moved to another location in Brazil but then had to return to his old neighbourhood because it was difficult to find housing.12 Unfortunately, this type of situation could have happened to any vulnerable person, no matter what their origin or nationality. Therefore, this is not persecution. As for the allegations of racist behaviour on the part of Brazilians toward Haitians, the appellant's particular situation, while distressing, does not meet the threshold for persecution. [22] Being granted permanent status requires effort to keep it in force. As long as it is maintained, the resident shows a continuing interest in residing permanently in the host country. Leaving the country for longer than a prescribed period without a legally recognized reason results in the forfeiture of the right that was granted by Brazil. [23] Having enjoyed permanent resident status, the appellant's status could have been maintained, and if it was not possible for him to do so because he was outside the country, it follows that it is by his own actions that the appellant jeopardized the retention of his status. Considering that the reasons for leaving Brazil do not constitute persecution, I consequently agree with the RPD that the appellant left Brazil voluntarily and chose to remain outside the country for more than two years. The loss of his permanent resident status was therefore voluntary and weighs in favour of exclusion. The RPD did not err. The possibility of returning to Brazil [24] The appellant submits the RPD did not properly consider that he had left Brazil more than two years prior, and that his failure to take steps is not a recognized factor weighing in favour of exclusion. [25] According to the documentary evidence,13 permanent resident status is lost when the individual is outside Brazil for more than two years without justifying their absence. There is nothing in the law that defines the acceptable justifications. There is administrative recourse, and the status can be lost only upon completion of an administrative proceeding in which the individual has the right "to the principles of contradictory debate and ample defence." The appellant did not avail himself of such a proceeding. [26] The appellant left Brazil in XXXX 2016. He had therefore been absent from the country for more than two years at the time of the hearing, and even if he had possessed permanent resident status in Brazil, he would have lost it as of the date of the hearing. This factor weighs against exclusion. Risk in the country of origin [27] In order to properly weigh the factors in Zeng, the RPD assessed the risk that the appellant allegedly faces in Haiti. I also analyzed his fear in Haiti, and I concur with the RPD's analysis in paragraphs 15 to 20 of its decision. Canada's international obligations [28] It is important to note that with respect to the possibility that he is the victim of discrimination, Canada has never made a commitment to the international community to refuse or send back refugee protection claimants on this particular ground. I am of the opinion that Canada's international obligations would be upheld in applying the exclusion under Article 1E of the Convention, particularly its obligations to protect those who fear persecution and those who would be subjected to a risk within the meaning of subsection 97(1) in the event of their return. Weighing the Zeng factors [29] I weighed the various factors and concluded that the appellant should be excluded from Canada's protection under Article 1E of the Convention. The only factor that weighs against exclusion is the fact that he cannot return to Brazil. I gave more weight to the following factors that weigh in favour of exclusion: the appellant voluntarily left Brazil to go to the United States, and he would not face a risk in Brazil or in his country of origin, Haiti. Therefore, Canada would not be breaching its international obligations by not extending its protection to him. CONCLUSION [30] The RAD confirms the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection under section 98 of Act because he is a person described in Article 1E of the Convention as a result of his right to permanent residence in Brazil. The appellant has failed to establish a serious possibility of persecution or that it is likely that his life would be subjected to one of the risks set out in paragraph 97(1)(b) of the Act if he were to return to Brazil. [31] 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 March 30, 2021 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division (RPD) Record-1, Document 3 - National Documentation Package (NDP) on Brazil, September 30, 2019, Tab 3.4, BRA105515.FE: The rights and duties of permanent residents, including the rights and duties of individuals who have a permanent visa, such as professors, researchers, highly-skilled technicians and foreign scientists; procedure to obtain or renew a residency permit; grounds for losing permanent residence (2014-May 2016), Immigration and Refugee Board of Canada (IRB), May 25, 2016. 2 Ibid. 3 Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.). 4 Bandula v. (Minister of Citizenship and Immigration), 2003 FC 1062; Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (C.A.); Rajudeen v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 601 (C.A.). 5 Bandula v. (Minister of Citizenship and Immigration), 2003 FC 1062; N. K. v. Canada (Solicitor General), [1995] F.C.J. No. 889, at paragraph 21 (F.C.T.D.). 6 Transcript of the hearing before the RPD on October 31, 2019, pages 10 and 11. 7 Ibid., pages 10 to 14. 8 Ibid. 9 Ibid., pages 13 and 14. 10 Ibid., page 14. 11 Ibid., page 9. 12 Ibid., page 10. 13 SPR-1, RPD Record, Document 3 - NDP on Brazil, September 30, 2019, Tab 3.7: Response to Information Request - Brazil and Haiti: Resident status of Haitian citizens in Brazil, including their rights and responsibilities (2010-September 2017), IRB, October 3, 2017, ZZZ105986.FE; Tab 3.8: Whether a permanent resident automatically loses permanent resident status if outside the country for more than two years; recourse available to contest cancellation of permanent resident status (2017-March 2018), IRB, February 14, 2018, BRA106054.FE. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-01410 RAD.25.02 (January 2020) Disponible en français 7 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