MB9-14463

RAD File No. / No de dossier de la SAR : MB9-14463 MB9-14464 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision September 18, 2020 Date de la décision Panel Me Agnès Connat Tribunal Counsel for the persons who are the subject of the appeal Me Sabine Venturelli Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the appellant) is a citizen of Haiti, and XXXX XXXX XXXX XXXX (the minor appellant) is a citizen of Brazil. [2] The appellant fears criminals in Haiti who attempted to rape her and killed her uncle. She left for Brazil on XXXX XXXX XXXX 2013. Her daughter, the minor appellant, was born there in XXXX2016. The appellants left Brazil on XXXX XXXX XXXX 2016, for the United States before coming to Canada. [3] The Refugee Protection Division (RPD) concluded that the appellant was excluded under Article 1E of the Convention and that the minor appellant had not made any allegations of persecution or risk in her country of citizenship and would be able to acquire Haitian citizenship as the daughter of Haitian parents. [4] The appellant alleges that the RPD erred in concluding that she was excluded under Article 1E of the Convention, that it failed to consider all of the evidence concerning the situation in Haiti and that of Haitians in Brazil, that the decision lacked consistency and intelligibility, that it erred in concluding there was no prospective risk in Haiti, and that it minimized the formalities for regularizing their situation in Haiti or Brazil. [5] For the Refugee Appeal Division (RAD), the determinative issues are whether the RPD demonstrated bias and whether it erred in analyzing the appellant's exclusion under Article 1E of the Convention. DETERMINATION [6] I dismiss the appeal. The RPD was correct in determining that the appellant XXXX XXXX is excluded under Article 1E of the Convention and that she is neither a Convention refugee nor a person in need of protection. The RPD was correct in determining that the minor appellant XXXX XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. DECISION BEING APPEALED [7] After weighing the factors in Zeng,1 the RPD concluded that the appellant was excluded under Article 1E of the Convention: the appellant had had permanent residence in Brazil, had lost it after an absence of more than two years, had left Brazil voluntarily, and would be able to regain permanent residence through her family connection with the minor appellant as the mother of a child of Brazilian nationality. It was of the opinion that the appellant had an internal flight alternative (IFA) in Les Cayes, Haiti, and that Canada would not be in breach of its international obligations by not granting her protection. The claim of the minor appellant, a citizen of Brazil, is rejected due to the absence of allegations of fear of persecution, a risk to her life or a risk of cruel and unusual treatment or punishment in her country of citizenship. ANALYSIS [8] The Minister intervened before the RPD but not before the RAD. [9] On June 15, 2020, the appellant received a notice regarding the status of her appeal, asking her to provide the RAD with any documents or submissions relating to the resumption of time limits following the COVID-19 pandemic within 30 days from the date of receipt of the notice. [10] On June 19 and July 16, the RAD sent the appellant a notice asking her to make submissions or provide supporting evidence in response to a request for submissions concerning the new National Documentation Package (NDP) on Haiti updated to March 31, 2020. On September 4, 2020, the RAD sent another notice to the appellant concerning the new version of the NDP on Haiti updated to September 1, 2020. [11] As of the date of this decision, the appellant had not made any submissions or provided any new evidence. [12] My role is to examine all of the evidence, which includes listening to the hearing, and to determine whether the RPD's decision is correct.2 I carefully assessed the appellant's allegations based on the evidence on the record and the directions set out in Guideline 4 on gender-related persecution.3 The RPD did not breach principles of natural justice or procedural fairness in its reasons [13] According to the appellant, the RPD's findings were arbitrary. She argues that the RPD failed to clearly establish how it concluded that there was no risk of persecution in the event of a return to Brazil or Haiti, accepted only the information and documentation supporting its position instead of analyzing the situation and the documentation as a whole, and demonstrated a definite bias. She adds that the RPD drew negative inferences regarding elements that are non-determinative and irrelevant, that the consistency of her account should take precedence and that the RPD set disproportionate requirements for her. She asserts that she was always consistent in her responses as to places and times, that her testimony did not contain any contradictions concerning crucial facts and that the RPD found her to be credible. [14] The RPD's decision is not arbitrary, and it does not contain any breaches of procedural fairness or natural justice. The principles of natural justice include two types of duties for the RPD, namely procedural fairness and impartiality. The duty of impartiality includes the obligation for the RPD not to have preconceived notions about the outcome of a case. The decision in Committee for Justice and Liberty states as follows:4 "The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information...". In other words, would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude that the decision-maker, whether consciously or not, will not deliver a fair decision? [15] The appellant does not identify any specific passages in the reasons that might indicate that the RPD may have shown bias or had preconceived notions or assumptions. The RPD rejected the appellant's claim after analyzing the criteria in Zeng and analyzing each criterion in light of the appellant's testimony, the documentary evidence, the Minister's intervention and all of the evidence. I do not see any indication in the language used by the RPD or in its analysis that might lead one to believe that it showed bias. It found that the appellant was credible and did not draw any negative inferences in its analysis of the risk in either Brazil or Haiti. On the contrary, although the RPD noted an inconsistency between the appellant's port-of-entry interview and her testimony, it accepted the appellant's explanations in light of her overall credibility. I also do not see any elements that might lead me to believe that the RPD showed bias in its reasons with respect to the analysis of the minor appellant's claim. The RPD's rejection of the appellants' claims is not, in and of itself, sufficient to conclude that the RPD showed bias. After conducting a realistic and practical analysis of the RPD's reasons, all of the evidence and the hearing, I conclude that the RPD did not show bias in either its reasons or at the hearing and that its decision was fair. The appellant is excluded from Canada's protection under Article 1E of Convention [16] The RPD concluded that the appellant had permanent residence in Brazil. The appellant does not specifically contest this finding. I do not see any errors in the analysis and confirm that the appellant had obtained permanent residence in Brazil.5 [17] The appellant is not challenging the analysis of the loss of status after two years outside of the country. I do not see any errors in that analysis. The appellant lost her status in Brazil after being absent for more than two years. I note that the RPD erred in indicating that the appellant left Brazil on XXXX XXXX XXXX 2016.6 This error is not determinative, particularly since the RPD does indicate the correct date, XXXX XXXX XXXX 2016, in the section addressing the appellant's loss of status in Brazil. [18] The RPD notes that permanent residents have the same rights as Brazilians, subject to certain restrictions. The appellant does not specifically challenge this. I do not see any errors in the analysis and confirm that permanent residents have rights similar to those of Brazilian nationals.7 The appellant has the right to return to Brazil [19] The RPD concluded that the appellant could acquire permanent residence in Brazil by taking advantage of provisions with regard to family reunification. [20] The appellant submits that the RPD erred in its analysis of the criteria in Zeng, as she left Brazil involuntarily more than two years ago and would not be able to regain permanent residence. [21] The appellant's daughter was born in Brazil on XXXX XXXX XXXX XXXX, and has citizenship in that country.8 According to the documentary evidence,9 a family reunification visa is available to persons who have a dependent child with Brazilian citizenship.10 This family reunification visa is available to Haitians. As an immigrant who is the mother of a child of Brazilian nationality, she is able to obtain a temporary visa11 for family reunification reasons. As a "foreign-born parent of a Brazilian child,"12 she can then apply after arrival for a permanent visa (that is valid for five years) or permanent residence. She can become naturalized after residing within the national territory for at least one year.13 The requirements for visa applications are non-discretionary and administrative in nature (produce a valid passport, the child's birth certificate and photographs, not have a criminal record, etc.). As her daughter was born in XXXX2016, the appellant could have applied for naturalization before leaving Brazil on XXXX XXXX XXXX 2016. [22] The appellant can take advantage of the right to return to Brazil by obtaining permanent resident status for reasons of family reunification and then become naturalized. This status will give her the same rights and obligations as those of citizens of that country. This factor weighs in favour of exclusion. The appellant left Brazil voluntarily [23] The RPD concluded that the appellant's allegations were insufficient to justify concluding that she did not leave Brazil voluntarily and was a victim of persecution. It was of the opinion that she had not established that the discrimination she allegedly experienced was [translation] "serious and repeated" and had had "serious consequences" for her. [24] The appellant asserts that the RPD failed to consider all of the evidence, was expeditious, erred in interpreting the evidence regarding the situation in Brazil, and underestimated the seriousness of her situation in Brazil. She adds that she cannot obtain adequate protection. [25] The RPD's finding is correct. The reasons cited by the appellant for leaving Brazil are insufficient to conclude that her departure was involuntary. The appellant left Brazil voluntarily after living there from XXXX 2013 to XXXX 2016 to go to the United States. [26] At the hearing, she explained that she left Brazil because she had experienced discrimination, notably from the Haitian community, that her photograph had been circulated on WhatsApp and that she had been excluded after being arrested and interrogated for a crime she did not commit. She did not allege that she had experienced persecution or discrimination in Brazil on the part of the general population. In her Basis of Claim Form, she alleges that she left Brazil [translation] "because of many acts of violence against Haitians motivated by social pressure." [27] She explained that she had received health care while she was pregnant and stated that she had developed eclampsia, had received care at no cost to her and had undergone a caesarean. She stated that she has had difficulty finding employment and that when she was working at a XXXX XXXX, she found it difficult because she did not speak the language and always had to have someone there to interpret. She does not allege any incidents related to searching for employment during which she allegedly experienced discrimination or racism. [28] Based on the documentary evidence, Brazilian law prohibits racial discrimination, specifically denial of access to public or private facilities, employment, or housing to anyone based on race, but Afro-Brazilians may encounter discrimination.14 The appellant's employment-related challenges are corroborated by documentary evidence indicating that Haitian women may encounter difficulties in finding employment because they do not speak Portuguese.15 The appellant stated at the hearing that she did not speak Portuguese. Despite this, Haitians generally find work in various sectors including construction, the hotel industry and cleaning.16 [29] The appellant argues that the RPD failed to consider all of the evidence concerning the situation in Brazil. In support of her argument, she cites Tab 13.2, which indicates that the situation for Haitians in Brazil is unacceptable. This excerpt from the evidence documents an increase in the number of asylum seekers in Brazil as the economy grows. She reports that representatives of the Haitian community have been victims of violent attacks that appear to have been racially motivated. [30] The appellant is correct that the incidents cited in the evidence are unacceptable and that racism and discrimination have no place in any society. With respect to her personal situation, however, the reasons she cites are not sufficient to classify her departure from Brazil as involuntary. The discrimination experienced by certain Haitians in Brazil is insufficient on its own to justify her leaving Brazil. She testified that she experienced discrimination after she was arrested and that this damaged her reputation, adding that her photograph was circulated on WhatsApp, including among the Haitian community, to the point that her mother living in Haiti asked her about it. This fact in itself does not explain why the appellant chose to leave Brazil. Although the appellant may have had difficulty finding employment, this was not due to a violation of her basic rights. She was able to work and receive health care. The level of discrimination and racism experienced by the appellant is insufficient to conclude that she left involuntarily. [31] The appellant submits that she could not receive adequate protection, but she never complained to the Brazilian authorities. Although recourse against discrimination is lacking in Brazil, it does exist.17 The appellant did not produce any evidence that she made use of such recourse after the incidents following her arrest. It cannot be concluded, based on the fact that she was arrested and then released in connection with a murder case after investigation, that she could not rely on state protection if she needed it. Nor does this constitute sufficient reason to explain her departure from Brazil. [32] For these reasons, I find that the appellant left Brazil voluntarily. This factor weighs in favour of exclusion. Canada would not be violating its international obligations [33] The appellant clearly has a right to return to Brazil and has access to permanent residence, status that gives her access to rights and obligations similar to those of nationals of that country. There is no reason to conclude that Canada would be violating its international obligations by failing to grant her protection. This factor weighs in favour of exclusion. Risk the appellant would face in her country of origin, Haiti [34] The appellant asserts that the RPD failed to consider all of the evidence, was expeditious, erred in interpreting the evidence regarding the situation in Haiti, and underestimated the seriousness of her situation in Haiti. She adds that she cannot receive adequate protection and states that the RPD erred in concluding that she had an IFA in Les Cayes. [35] The Federal Court's approach in Osazuwa18 applies to the facts in this case in that the appellant had acquired permanent resident status in Brazil, a country where she was able to live safely and could obtain state protection. She left that country to go to the United States and then Canada while letting her status expire. She did not establish that she could not regain resident status through family reunification and thereby acquire all the rights associated with that status. She is therefore clearly able to exercise a right to return. Canada would consequently be meeting its international obligations. [36] Neither the RPD nor the RAD needs to analyze the risk to which she would be subjected in Haiti, even though this factor is listed as the third criterion established in Zeng, since her right to return to Brazil is clear. Accordingly, I will not be addressing her arguments concerning the risk in Haiti. Alleged risk in country of residence, Brazil [37] The appellant submits that it can be concluded, based on the situation experienced by people in a situation similar to her own, that she would face a serious risk of persecution in Brazil and that the RPD was supposed to consider the objective evidence and the most recent source of information in its assessment of the documentary evidence. In support of this submission, she cites Tab 13.2 of the NDP on Brazil. [38] The appellant had permanent resident status in Brazil. She lost it by remaining outside of the country for more than two years but would be able to regain this status by applying for a family reunification visa and then permanent residence. The RAD is consequently not obliged to consider the appellant's fear or risk in her country of residence.19 [39] Although Haitians in Brazil are victims of discrimination and high levels of crime, this does not amount to persecution. If the level of discrimination and racism experienced by the appellant is insufficient to conclude that she left involuntarily, then it is also insufficient to conclude, on a balance of probabilities, that she would be subjected to a serious possibility of persecution or a risk of harm under subsection 97(1) of the Immigration and Refugee Protection Act if she returned to that country. [40] After weighing the factors in Zeng, I conclude that the appellant is excluded under Article 1E of the Convention. The appellant had had a status similar to that of Brazilian nationals and had lost it at the date of the hearing. A number of factors weigh against her exclusion from Canada's protection: she lost her status voluntarily. She has the option of returning to Brazil by applying for a family reunification visa and obtaining permanent resident status. Canada would not be violating its international obligations. She would not be facing a serious possibility of persecution or a risk of harm under subsection 97(1) if she returned to Brazil. [41] The RPD's determination is correct. The appellant is a person referred to in Article 1E of the Convention and is neither a Convention refugee nor a person in need of protection. The appellant's minor daughter, XXXX XXXX XXXX XXXX, is neither a refugee nor a person in need of protection [42] The appellants are not contesting the RPD's determination that the minor appellant is neither a Convention refugee nor a person in need of protection. [43] The appellant's minor daughter does not allege having any fears in her country of citizenship, Brazil. I do not note any errors in the RPD's analysis, based on which she is neither a refugee nor a person in need of protection. CONCLUSION [44] I dismiss the appeal and confirm the determination of the RPD that XXXX XXXX is a person referred to in Article 1E of the Convention and is neither a Convention refugee nor a person in need of protection. [45] I dismiss the appeal and confirm the determination of the RPD that XXXX XXXX XXXX XXXXXXXX is neither a Convention refugee nor a person in need of protection. (signed) Agnès CONNAT Me Agnès Connat September 18, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118 (Zeng), at para. 28. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. 4 Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 SCR 369; and R. v. S. (R.D.), [1997] 3 SCR 484, at p. 394. 5 SPR-1, Refugee Protection Division (RPD) record, RPD decision, at para. 13. 6 SPR-1, RPD record, RPD decision, at para. 3. 7 SPR-1, RPD record, RPD decision, at para. 11. 8 SPR-1, RPD record, birth certificate, at p. 114 of RPD record. 9 SAR-1, National Documentation Package (NDP) on Haiti, September 1, 2020, 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.... Immigration and Refugee Board of Canada (IRB). August 28, 2020. ZZZ200291.FE. 10 Ibid., Tab 14.11, at p. 15/51, "Article 45 of Decree No. 9,199 of 2017 provides the following: Art. 45. A temporary visa shall be granted for family reunification reasons to immigrants who meet one of the criteria listed below. They must: ... III. have a child with Brazilian citizenship;" 11 Ibid., Article 45 of Decree No. 9,199 of 2017, at p. 15/51. 12 Ibid., Normative Resolution No. 108 of 2014, at p. 17/51, "Sources report that, according to Normative Resolution No. 108 of 2014 [under the law of 1980], foreign-born parents of a Brazilian child may obtain a permanent visa in Brazil [that is valid for five years] (EMDOC May 2015, 74-75; de Almeida and Viglino 2016, 4), or [translation] 'permanent residence' (de Almeida and Viglino 2016, 4)." 13 Ibid., Articles 65 and 66 of Law No. 13,445 of 2017, at p. 16/51, "Article 65. Ordinary naturalization shall be granted under the following conditions: I. the naturalization applicant has civil capacity, in accordance with Brazilian law; II. the naturalization applicant person concerned has resided within the national territory for at least four (4) years; III. the naturalization applicant is able to communicate in Portuguese, and thus understand the conditions for acquiring naturalization; IV. the naturalization applicant has not been convicted of a criminal offence or received a pardon, as per the provisions of the law. Article 66. The minimum duration of residence established in paragraph II of article 65 shall be reduced to a minimum of one (1) year when the naturalization applicant has met one of the following conditions: I. (REPEALED); II. The applicant has a Brazilian child;" 14 SAR-1, NDP on Haiti, September 1, 2020, Tab 14.16: Brazil and Haiti: Employment situation of Haitians in Brazil, including treatment in the workplace; whether Haitians face discrimination in hiring.... IRB. September 18, 2019. ZZZ106295.E. 15 Supra, endnote 9, NDP on Haiti, September 1, 2020, Tab 14.11. 16 Supra, endnote 9, NDP on Haiti, September 1, 2020, Tab 14.11. 17 Supra, endnote 14, NDP on Haiti, September 1, 2020, Tab 14.16. 18 Osazuwa v. Canada (Citizenship and Immigration), 2016 FC 155 (CanLII). 19 Jean-Pierre, Isaac v. M.C.I., (F.C., No. IMM-623-19), Pamel, January 27, 2020; 2020 FC 136. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-14463 MB9-14464 RAD.25.02 (January 2020) Disponible en français 12 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