Jurisprudential Guide - Decision MB8-00025

​​​​​​​ Private Proceeding

Reasons and Decision

Person who is the subject of the appeal:
XXXX XXXX XXXX

Appeal considered / heard at:
Montreal, Quebec

Date of decision:
November 9, 2020
(Amended on December 8, 2020)

Panel:
Jo-Anne Pickel

Counsel for the person(s) who is(are) the subject of the appeal:
Parminder Singh​

Designated Representative(s):
N/A

Counsel for the Minister:
N/A

Overview and framework of analysis

[1] This decision addresses whether the Refugee Protection Division (RPD) erred in finding that XXXX XXXX XXXX is excluded from refugee protection by the combined effect of Section E of Article 1 (“Article 1E”) of the United Nations Convention Relating to the Status of Refugees (“Convention”) and s. 98 of the Immigration and Refugee Protection Act (IRPA). It also addresses the more general issue of whether the RPD and the RAD must take into account any risk raised by a claimant in respect of their country of residence prior to excluding them from refugee protection under Article 1E.

[2] As I describe below, there currently exist two lines of case law on the interpretation of Article 1E in cases such as the present where, at the date of the RPD hearing, a claimant continued to hold a status in their country of residence that conferred on them substantially the same rights and obligations as nationals. After the judicial review decision in this case, two Justices of the Federal Court developed an interpretation of Article 1E and relevant IRPA provisions that differs from the approach that has consistently been followed by the RPD, the RAD, and the Federal Court in other decisions. Under this new approach, the RPD and the RAD would not have the power to take into account any risk raised by a claimant/appellant in respect of their country of residence in cases such as the present.

[3] In the sections that follow, I detail my reasons for preferring the approach that traditionally has been followed by the RPD, the RAD, and the Federal Court. This approach accepts that the RPD and the RAD must assess whether the claimant’s country of residence offers a form of safe surrogate protection for them before finding that they are excluded from protection on the basis of their status in that country. In other words, the RPD and the RAD must take into account and assess the risk raised by claimants in respect of their country of residence prior to finding that they are excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA.

[4] The traditional framework of analysis which I support in this decision involves asking the following questions:

  1. At the date of the RPD hearing, did the claimant hold a status in a country of residence that confers on them substantially the same rights and obligations that are attached to the possession of the nationality of that country?
  1. If the answer to question 1) is no, the RPD and/or RAD must consider whether the claimant previously held such a status and lost it or had access to such a status and failed to acquire it. If so, the RPD and the RAD must consider and balance the factors set out by the Court of Appeal in the last part of para. 28 of the Zeng decision.Footnote 1
  2. If the answer to question 1) is yes, the next question is whether the claimant’s country of residence is unsafe for them in the sense that they face a serious possibility of persecution on a Convention ground or, the likelihood of being subjected to a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment for which they have no state protection or internal flight alternative.
  1. If the claimant’s country of residence is unsafe for them, they are not excluded from refugee protection and the decision maker must consider whether they are a Convention refugee or a person in need of protection in respect of their country of nationality.
  2. If the claimant’s country of residence is safe for them, they are excluded from refugee protection by the combined effect of Article 1E and s. 98 of the IRPA.

[5] Applying this approach to the circumstances of this case, I find that the RPD correctly concluded that Mr. XXXX is excluded from refugee protection by the combined effect of Article 1E and s. 98 of the IRPA. The RPD was correct to take into account the risk raised by Mr. XXXX in respect of Brazil. However, the RPD erred in taking this risk into account after it had already found that Mr. XXXX was excluded under Article 1E rather than as part of its Article 1E analysis. Despite this error in the sequence of its analysis, the RPD correctly concluded that Mr. XXXX does not face a serious possibility of persecution or a likelihood that he would be subjected to danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment in Brazil. Therefore, the RPD correctly concluded that he is excluded from refugee protection.

Background

[6] Mr. XXXX is a citizen of Haiti. He fears that, if he returns to Haiti, he will be killed or seriously harmed by a criminal group that beat him and threatened him with death in 2011. Mr. XXXX left Haiti for the Dominican Republic and then made his way to Brazil in XXXX 2011, where he acquired permanent resident status. The situation for Haitians in Brazil became less secure starting in 2014. Mr. XXXX alleged that many Haitians were assassinated in Brazil and that Brazilian citizens accused Haitians of stealing their jobs. Mr. XXXX was hit by a car one day when he was riding his bicycle. He also could not find work during the latter part of his stay in Brazil and he often had insults directed at him by Brazilian citizens. Mr. XXXX left Brazil for the United States in XXXX 2016 but fled to Canada because he feared deportation from that country. He claimed refugee protection in Canada in August 2017.

Refugee Protection Division​ decision

[7] The RPD found that, as a permanent resident of Brazil, Mr. XXXX had access to substantially the same rights and obligations as Brazilian nationals. As a result, the RPD found that he was a person referred to in Article 1E of the Convention. The RPD then went on to consider the risks that Mr. XXXX raised in respect of Brazil. Due to a contradiction and an omission in his evidence, the RPD found that Mr. XXXX had not met his onus of credibly establishing that he would face a serious possibility of persecution on a Convention ground in Brazil or a likelihood that he would be subjected personally to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment.

First appeal to the Refugee Appeal Division (RAD) and judicial review

[8] Mr. XXXX appealed the RPD’s decision to the RAD. The RAD denied his appeal and confirmed the RPD’s conclusion that he was excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. The Federal Court allowed Mr. XXXX application for judicial review because it found the RAD’s analysis unintelligible and inconsistent with the language of section 98 of the IRPA.Footnote 2 Specifically, in the Justice’s view, the RAD examined the fear that Mr. XXXX raised in respect of Brazil after already finding that he was excluded from protection by the combined effect of Article 1E of the Convention and s. 98 of the IRPA.Footnote 3 The Justice questioned the basis for the RAD’s evaluation of the risk that Mr. XXXX had alleged in Brazil once it had already found him to be excluded from protection under the Convention. The Justice set aside the RAD’s decision and referred the matter back to the RAD for redetermination.

Proposed new evidence and oral hearing request

Proposed new evidence

[9] Mr. XXXX tendered the following two documents as proposed new evidence after he submitted his appeal record: (1) a statement sworn on March 16, 2018, in which he described the contents of WhatsApp messages he received on XXXX XXXX–XXXX XXXX 2018; and (2) an extract of minutes from a XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2011.

[10] I find that the statement should be admitted as new evidence based on a weighing of the factors set out in Rule 29(4) of the RAD Rules and because it meets the other conditions for the admissibility of new evidence set out in s. 110(4) of the IRPA and applicable case law.Footnote 4 The statement describes WhatsApp messages that Mr. XXXX allegedly received after he filed his appeal record. The sender demanded that Mr. XXXX send him money or else his life would be in danger if he returned to Haiti. The WhatsApp messages described in the statement post-date the filing of the appeal memorandum. The statement would have relevance and probative value relating to Mr. XXXX claim against Haiti and it brings new evidence regarding Mr. XXXX claim against Haiti. The statement also meets the conditions set out in ss. 110(4) of the IRPA and applicable case law. It post-dates the RPD decision in this case. As such, it would not have been available to Mr. XXXX to present to the RPD and, therefore, he could not reasonably have been expected to present it to the RPD. The statement also meets the conditions set out in the applicable case law. While the timing of the messages does seem remarkably fortuitous, I am prepared to find that there is no basis to find them not credible at this stage. The statement is relevant to Mr. XXXX claim against Haiti and the information in it is new. Based on all of the above, I find the statement admissible. However, ultimately, it does not affect the result in this case because the RPD was correct to conclude that Mr. XXXX is excluded from refugee protection. Therefore, it is unnecessary to conduct an assessment of the risk that Mr. XXXX alleged in relation to Haiti.

[11] The extract of the minutes from the Justice of the Peace Tribunal submitted by Mr. XXXX is not admissible as new evidence. Even if I were to find that the extract met the conditions for the late submission of evidence set out in Rule 29(4) of the RAD Rules, it does not meet the conditions for admissibility of new evidence contained in ss. 110(4) of the IRPA. Specifically, the extract predates the RPD’s decision and there is no evidence that it was not reasonably available to Mr. XXXX at the time of the RPD’s decision. Therefore, Mr. XXXX can reasonably have been expected to present the extract to the RPD before it rendered its decision.

[12] For these reasons, Mr. XXXX request to admit his statement as new evidence is granted but his request to admit the Justice of the Peace extract is denied.

Oral hearing request denied

[13] Mr. XXXX request for an oral hearing is denied as the statement that I have admitted as new evidence does not meet these conditions for the holding of an oral hearing found in s. 110(6) of the IRPA. In particular, the determinative issue in this case centers on whether Mr. XXXX is excluded from protection due to his permanent resident status in Brazil. Therefore, even if accepted, the statement would not justify allowing or rejecting his claim since it relates solely to his risk in Haiti.

Analysis of merits

Issues on appeal

[14] This case raises the following three issues: (1) what is the appropriate date for the evaluation of Mr. XXXX permanent resident status in Brazil?; (2) are the RPD and the RAD required to take into account the risk raised by a claimant in respect of their country of residence before excluding them from refugee protection in cases such as the present?; and (3) if the answer to question (2) is affirmative, did the RPD err in its assessment of the risk Mr. XXXX raised in respect of Brazil?

Date for evaluation of Mr. XXXX permanent resident status in Brazil

[15] An issue that arises in this case is the date on which the RAD must assess Mr. XXXX permanent resident status in Brazil. Mr. XXXX counsel argues that, although Mr. XXXX had permanent resident status in Brazil at the time of the RPD hearing in November 2017, he likely lost this status in XXXX 2018 because he had been outside of Brazil for two years by that time.

[16] The RAD and the Federal Court have consistently followed the Court of Appeal’s determination in Majebi that the relevant date for the RAD’s evaluation of an appellant’s status in a country of residence for the purpose of Article 1E is the date of the RPD hearing.Footnote 5 In this case, this means that I must consider whether Mr. XXXX had permanent resident status on the date of the RPD hearing in 2017 rather than considering whether he has permanent resident status in Brazil as of the date of this appeal.

[17] This approach has recently been questioned by a Justice of the Federal Court in Abel.Footnote 6 Despite certifying a question to the Court of Appeal on the issue, the Justice in Abel found that the Court of Appeal decision in Majebi is clear and it is binding on the Federal Court and the RAD. Therefore, the date that the RAD must use to evaluate the permanent resident status of an appellant is the date of the RPD hearing. Unless or until the Federal Court of Appeal clarifies or alters the decision in Majebi regarding the appropriate date for the evaluation of an appellant’s status, the RAD is bound by that decision. This finding is sufficient to dispose of Mr. XXXX argument with respect to his loss of permanent resident status in Brazil following the RPD hearing.

[18] That said, I will note that I share the same concerns that were expressed by the Justice in Abel. In Majebi, the Federal Court of Appeal based its decision on the fact that an appeal before the RAD is not a true de novo proceeding and the RAD’s role is to intervene when the RPD’s decision is wrong.Footnote 7 Based on this, the Court of Appeal reasoned that the RAD is required to consider an appellant’s status on the same day used by the RPD or else it would be deciding a different question than the one addressed by the RPD.Footnote 8

[19] Even if a RAD appeal is not a de novo proceeding, the RAD does regularly admit new evidence of changed circumstances if the evidence satisfies the admissibility requirements set out in the IRPA and applicable case law.Footnote 9 The RAD may also consider new issues, such as new sur place claims, that arise from new evidence admitted on appeal. It does not appear that any argument based on the RAD’s power to admit new evidence was made to the Court of Appeal in Majebi.

[20] It does seem difficult to justify that the RAD must simply ignore or not take into account evidence that the appellant has lost the status that gave rise to their exclusion under Article 1E by the time of their appeal before the RAD. For example, in this case, it seems difficult to justify that I would have to simply ignore the fact that Mr. XXXX lost his permanent resident status in Brazil over two years ago. If the RAD did have the power to consider this evidence and it was satisfied that the claimant lost the status that led the RPD to find them excluded from protection, it would not necessarily lead to rejection of the RPD’s exclusion finding. Instead, the RAD would have to carry out the analysis set out by the Court of Appeal in Zeng which applies when a claimant previously had, but subsequently lost, status in their country of residence.Footnote 10

[21] Despite the above obiter comments, the reality remains that the RAD is bound by the Federal Court of Appeal’s decision in Majebi as to the appropriate date for the evaluation of an appellant’s status in their country of residence. Therefore, I find that the appropriate date for the evaluation of Mr. XXXX status in this case is the date of the RPD hearing. It was not disputed that Mr. XXXX had permanent resident status in Brazil on that date and that this status conferred on him substantially all of the rights and obligations of Brazilian nationals.

Are the Refugee Protection Division and the Refugee Appeal Division ​required to take into account a claimant’s risk in the Article 1E country

[22] The second issue that arises in this case is whether the RPD and the RAD must take into account the risk raised by a claimant in respect of their country of residence before excluding them from protection by the combined effect of Article 1E and s. 98 of the IRPA in cases such as the present. As I detail below, there are two currents of opinion at the Federal Court on this issue. Having reviewed both lines of Federal Court case law, I prefer the traditional approach which requires the RPD and the RAD to take into account the risk raised by a claimant prior to finding that they are excluded from refugee protection.

[23] I note that the following analysis applies only to cases such as the present in which, at the time of the RPD hearing, the claimant continued to hold a status in their country of residence that conferred on them substantially the same rights and obligations as nationals in that country. When I refer to “cases such as the present” in this decision, it is to these types of cases that I am referring.

Two lines of Federal Court case law

[24] Until relatively recently, the Federal Court, the RAD, and the RPD had consistently accepted, albeit without any detailed analysis, that in cases such as the present the RPD and the RAD must assess whether the claimant’s country of residence offers safe surrogate protection for them before finding that they are excluded from protection due to their status in that country. In other words, the Federal Court, the RAD, and the RPD accepted that the RPD and the RAD are required take into account the risk raised by a claimant in respect of their country of residence before finding that they are excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA.Footnote 11 Admittedly, the RPD and the RAD have not always been consistent as to whether they have analyzed the claimant’s risk before making a finding on the exclusion issue or after making such a finding. However, the RPD and the RAD have consistently taken into account the risk raised by claimants in respect of their country of residence as part of the overall Article 1E analysis.

[25] The Federal Court Justice who rendered the judicial review decision in this case raised questions about the power of the RPD and RAD to consider the risk raised by a claimant in respect of their country of residence after they had found the claimant excluded from refugee protection. In a subsequent case, Saint Paul,Footnote 12 she agreed with another Justice of the Federal Court who, in Célestin,Footnote 13 went further to hold that the RPD and the RAD must not take into account the risk raised by a claimant in respect of their country of residence as part of their analysis of whether the claimant is excluded from refugee protection in cases such as the present. Similar questions also had been raised by the Justice in a third case, Constant.Footnote 14

[26] According to the Célestin/Saint Paul approach, the only factor for the RPD and RAD to consider in cases such as the present is whether the claimant held a status in their country of residence that conferred on them substantially the same rights and benefits as nationals of that country. If so, the RPD and the RAD must exclude the claimant from protection without taking into account any risk they have raised in respect of their country of residence. Under theCélestin/Saint Paul approach, the analysis of a claimant’s risk in respect of their country of residence must occur solely at the Pre-Removal Risk Assessment (PRRA) stage.

[27] In decisions rendered subsequent to Célestin, Saint Paul, and Constant, some Justices of the Federal Court have continued to implicitly accept that it is reasonable for the RAD and RPD to take into account the risk alleged by a claimant in respect of their country of residence before excluding them from refugee protection.Footnote 15 Other Justices have explicitly declined to address the Célestin and Saint Paul decisions on the basis that these decisions had no impact on the conclusion in the case before them.Footnote 16 The Justices in two cases found that, even if the RAD may not be required to take into account the risk raised by a claimant in their country of residence, it is not unreasonable to do so.Footnote 17 Lastly, in a recent case, a Justice has expressly disagreed with the approach taken in Célestin and Saint Paul to find that the RAD is required to take into account any risk raised by the claimant in respect of their country of residence before finding them excluded from protection.Footnote 18

[28] In the sections that follow, I explain why I prefer the approach that has been consistently followed by the Federal Court, the RAD, and the RPD except by the Justices who decided Célestin, Saint Paul and Constant. In my view, this approach is consistent with a purposive interpretation of Article 1E which Parliament implemented into Canadian law by way of s. 98 of the IRPA. It is also consistent with the approach recommended by the United Nations High Commissioner for Refugees (UNHCR) as well as respected scholars in the field of international refugee law.

Interpretation of a Canadian statute such as the Immigration and Refugee Protection Act​ that incorporates an international treaty

[29] Article 1E provides:

This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

[30] Section 98 of the IRPA provides:

A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.

[31] The Supreme Court and the Federal Court of Appeal have both found that s. 98 incorporates Articles 1E and 1F into Canadian law.Footnote 19This incorporation means that Parliament accepts the international obligations flowing from Article 1E of the Convention. Therefore, decision-makers must adopt an interpretation of Article 1E that is consistent with Canada’s obligations under that provision and the Convention in general.Footnote 20

[32] The Supreme Court has made clear that the interpretation of an international treaty that has been directly incorporated into Canadian law is governed by Article 31 and 32 of the Vienna Convention on the Law of Treaties.Footnote 21 Article 31(1) of the Vienna Convention provides that treaty provisions must be interpreted by having regard to the following factors: (1) the ordinary meaning of the terms of the treaty; (2) their context; and (3) the object and purpose of the treaty and the provision at issue. Decision makers may have recourse to supplementary means of interpretation, including the preparatory work of the treaty (Travaux Préparatoires), in order to confirm an interpretation arrived at under Article 31. Alternatively, a decision maker may use supplementary means of interpretation to determine the meaning of a provision when the application of the Article 31 interpretative factors leaves them with an ambiguous result, or leads to a result that is manifestly absurd or unreasonable.Footnote 22

Ordinary meaning of Article 1E

[33] The point of departure for interpreting Article 1E is to examine the plain meaning of the text of the provision. The ordinary meaning of the words used in Article 1E is that the Convention does not apply to persons who have been accorded, by competent authorities of their country of residence, a status which permits them to enjoy the same rights and obligations as persons who are in possession of nationality in that country.

[34] The Article does not expressly refer to any consideration of whether the country of residence provides safe surrogate protection for the claimant. It could be argued that a consideration of whether a claimant enjoys substantially the same rights and obligations as nationals in their country of residence requires considering whether that country provides them with protection against persecution and serious harm. According to this approach, a person whose country of residence does not provide them with protection against persecution and serious harm in that country cannot be said to enjoy substantially the same rights and obligations as nationals of the country.

[35] The RPD and the RAD have not tended to follow this approach as, instead, they have applied the factors set out in the ShamlouFootnote 23 decision to determine whether a claimant enjoys the same rights and obligations as nationals of their country of residence. The RPD and the RAD have considered the risk raised by claimants in respect of their country of residence as a separate step of the Article 1E analysis. While such a separate step is not specifically called for by the ordinary meaning of the words used in Article 1E, it is consistent with the context and purposes of the provision.

Context of Article 1E

[36] Article 1E is an exclusion clause. The exclusion clauses in Article 1E and 1F apply to persons who either do not need protection (Article 1E)Footnote 24 or do not deserve it (Article 1F).Footnote 25 The consequences of finding that a claimant is a person referred to in Article 1E or Article 1F is that they are excluded from refugee protection. These consequences are serious. It means that the claimant is excluded from protection without any consideration of whether they are at risk of persecution or otherwise in need of protection in relation to their country of nationality. This context would militate in favour of an assessment of whether a claimant does in fact enjoy a form of safe surrogate protection in their country of residence before finding them excluded from refugee protection based on their status in that country.

Object and purposes of the Convention and Article 1E

[37] Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination.Footnote 26 The objectives of the Convention include the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of… fundamental rights and freedoms.”Footnote 27 These humanitarian objectives are echoed in the objectives section of the IRPA.Footnote 28

[38] In Zeng, the Federal Court of Appeal found that the purpose of Article 1E is to “preclude the conferral of refugee protection if an individual has surrogate protection in a country where the individual enjoys substantially the same rights and obligations as nationals of that country.”Footnote 29 According to the Court of Appeal, the purpose of Article 1E is to exclude from refugee protection persons who do not need protection because they have a form of surrogate protection, in another “safe” country.Footnote 30 This purpose appears to have been expressly accepted in Célestin and Constant.Footnote 31

[39] The exclusion of individuals from refugee protection without any consideration of the risk they raised in respect of their country of residence is inconsistent with, and contrary to, the purposes of Article 1E and Canada’s international legal obligations under the Convention. Concretely, the application of the Célestin/Saint Paul approach in this case would mean that the RPD would have been required to find that Mr. XXXX was excluded from refugee protection for the sole reason that he had permanent resident status in Brazil at the time of the RPD hearing. By finding Mr. XXXX excluded from refugee protection under Article 1E, the RPD would implicitly be finding that Mr. XXXX did not require protection because he had a form of surrogate protection in Brazil without assessing whether this was in fact the case in the sense of Brazil being a safe country for him.

[40] As described above, the purpose of Article 1E is to exclude from protection individuals who do not require protection because they enjoy a form of surrogate protection in another safe country where they enjoy substantially the same rights and obligation as nationals of that country. People who face persecution or serious harm in their country of residence cannot be said to enjoy surrogate protection in that country. That country cannot be said to be “safe” for them such that they do not need international refugee protection. Therefore, the object and purposes of the Convention and Article 1E require decision makers like the RPD and the RAD to consider any risk raised by a claimant in their country of residence before excluding them from refugee protection under Article 1E of the Convention.

[41] In my view, it is inconsistent with the purposes of Article 1E of the Convention to restrict to the PRRA stage any consideration of the risk raised by a claimant in respect of their country of residence. By the time that a claimant such as Mr. XXXX finally gets to the PRRA stage, he may well have had two decision makers (the RPD and the RAD) find that he is excluded from refugee protection, and a court confirm those decisions, without any of these decision makers having taken into account his allegation that Brazil is not safe for him due to the persecution or serious harm he alleges in that country. This is inconsistent with Article 1E’s purpose of excluding only those individuals who do not require international refugee protection because they enjoy a form of surrogate protection in their country of residence.

[42] It also seems anomalous that a claimant who has citizenship in two countries, for example Haiti and Brazil, would have their risk assessed by the RPD in relation to both countries. However, on the Célestin interpretation, a person with a less durable form of status than citizenship in one of those countries would face the consequence of having no assessment of their risk whatsoever until the PRRA stage. This is especially anomalous because, as noted by the Justice in the recent Mwano decision, a PRRA is not equivalent to the consideration of a refugee protection claim by the RPD. Even if a decision to allow a PRRA application may have the effect of conferring refugee protection,Footnote 32 the purpose of a PRRA is simply to ensure that Canada does not remove foreign nationals who would be in danger or at risk upon removal.Footnote 33 It is largely a written process in which claimants have only a limited right to an oral hearing before a person delegated by the Minister.Footnote 34

Conclusion on the Article 1E interpretive issue

[43] Based on the factors set out above, Article 1E excludes from refugee protection individuals who do not require protection because they enjoy a form of surrogate protection in another safe country where they enjoy substantially the same rights and obligation as nationals of that country. Therefore, Article 1E not only permits, but requires, the RPD and the RAD to consider the risk raised by a claimant in respect of their country of residence before finding that they are excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. It is only by doing so that the RPD and the RAD can determine whether, in fact, the claimant does not the require the refugee protection to which they may be entitled under the Convention and the IRPA.

Interpretation consistent with approach taken by United Nations High Commissioner for Refugees​ as well as Hathaway and Foster

[44] The conclusion I have arrived at above is consistent with the approach to Article 1E taken by the UNHCR as well as scholars Hathaway and Foster. In the UNHCR Handbook, the UNHCR states that Article 1E deals with persons who are not considered to be in need of international protection.Footnote 35 In its Note on the Interpretation of Article 1E, the UNHCR states that the object and purpose of Article 1E are to exclude from refugee protection those persons who do not require protection because they already enjoy a status which corresponds to that of nationals of their country of residence.Footnote 36

[45] In its interpretive note, the UNHCR makes important observations about two different situations in which Article 1E may be applied. The first, and perhaps most common, situation in which Article 1E is applied is when an individual’s country of residence finds that they are excluded from refugee protection because they hold a status in that country that confers on them substantially the same rights and obligations as nationals. Article 1E may have been applied, for example, if Mr. XXXX had applied for asylum in Brazil. In such a situation, a claimant would not be raising any risks in respect of their country of residence and therefore a decision maker would not be called upon to take into account such risks. The second type of situation in which Article 1E is applied is when an individual seeks refugee protection in a third country. It is this scenario that arises in this case. The UNHCR notes that individuals may have a well-founded fear of being persecuted in their country of residence and to apply Article 1E to such an individual would undermine the object and purpose of the Convention.Footnote 37

[46] Similarly, Hathaway and Foster state that Article 1E affords state parties a lawful basis to exclude from refugee protection, individuals who have resided in a safe country who may reasonably be understood to be “de facto nationals” of that country.Footnote 38 They argue that a state in which there is a risk of being persecuted would fall below this standard.Footnote 39

[47] The UNHCR and Hathaway and Foster do not argue that a risk raised by a claimant in respect of their country of residence can simply be considered before “ordering a claimant’s removal from Canada,” as stated in Célestin.Footnote 40 While it is true that the UNHCR Note refers to the principle of non-refoulement,Footnote 41 the Note specifically addresses the need to analyze any risk raised by a claimant in respect of their country of residence before finding that they are excluded from refugee protection under Article 1E.

[48] In the Note, the UNHCR states as follows:

[B]efore applying Article 1E to such an individual, if he or she claims a fear of persecution or of other serious harm in the country of residence, such claim should be assessed vis-à-vis that country.Footnote 42 [emphasis added]

[49] It also states:

If a person is to be excluded under Article 1E based on the consideration that he or she enjoys a status which corresponds to that of nationals, it follows that before doing so, there is an obligation to examine the existence of any fear claimed vis-à- vis the 1E country.Footnote 43 [emphasis added]

[50] Likewise, Hathaway and Foster state that there is a duty to ensure that a person does not face a risk of persecution before finding them excluded from protection under Article 1E.Footnote 44

[51] In this way, the UNHCR Note on the Interpretation of Article 1E and the scholarship of Hathaway and Foster are consistent with the interpretation to Article 1E arrived at above in which the RPD and the RAD are required to take into account the risk raised by a claimant in respect of their country of residence before excluding them from protection under Article 1E.

No need to have recourse to Travaux préparatoires

[52] In my view, the application of the interpretative factors set out in Article 31 of the Vienna Convention do not lead to an ambiguous, manifestly absurd, or unreasonable result. Therefore, it is unnecessary to have recourse to the supplementary means of interpretation, such as travaux préparatoires, addressed in Article 32 of the Vienna Convention.

Counter-arguments made in Célestin and Saint Paul

[53] In this section, I address the four main reasons provided in Célestin and Saint Paul to support the conclusion that the RPD and RAD must not take into account any risk raised by claimants in respect of their country of residence in cases such as the present. The four arguments I address below are: (1) the fact that the Court of Appeal in Zeng did not mention any requirement to carry out an analysis of the risk raised by claimants in respect of their country of residence in cases such as the present; (2) the fact that ss. 96 and 97 of the IRPA provide protection only in respect of a claimant’s country of nationality, not their country of residence; (3) the relevance, if any, of the amendment that Parliament made to the IRPA’s PRRA provisions in 2012; and (4) concerns about administrative efficiency and the streamlining of the refugee determination process.

Test set out in Zeng

[54] To begin, I address the argument that the approach that was consistently followed prior to the Célestin/Saint Paul/Constant decisions amounts to a modification of the criteria set out by the Federal Court of Appeal in Zeng. As noted in Célestin, Saint Paul, and Constant, the Federal Court of Appeal in Zeng did not mention the need to take into account the risk raised by a claimant in respect of their country of residence in cases such as the present.Footnote 45 However, in my view, three points must be taken into consideration when reading the Zeng decision.

[55] First, the main question certified for consideration by the Court of Appeal in Zeng dealt with the analysis to be applied when a claimant did not take steps to prevent a loss of status in their country of residence. The Court of Appeal in Zeng was not dealing with the kind of situation that arises in cases such as the present where the claimant continued to have permanent resident status at the time of the RPD hearing. Second, the claimants in Zeng had raised no risk in respect of their country of residence. Therefore, the Court of Appeal was not required to turn its mind to that issue. Third, the Court of Appeal’s overriding concern in Zeng was with asylum shopping which is not a concern in this case.

[56] Taking these three factors into account, in my view, the Federal Court of Appeal in Zeng did not necessarily intend to preclude the RPD and the RAD from considering the risk raised by claimants in respect of their country of residence before finding that they are excluded from protection in cases such as the present. Indeed, it is only by considering any risk raised by a claimant in respect of their country of residence that the RPD and the RAD may give effect to the purposes of Article 1E discussed in Zeng—that is, to exclude from protection those who benefit from a form of surrogate protection in a safe country of residence.

Text of ss. 95–97of the Immigration and Refugee Protection Act

[57] A second argument made in support of the position that the RPD and RAD do not have the power to take into account the risk raised by claimants in respect of their country of residence is based on sections 95–97 of the IRPA. As noted in Saint Paul, section 95 of the IRPA sets out the categories of persons on whom refugee protection may be conferred. Sections 96 and 97 of the IRPA set out protections for Convention refugees and persons in need of protection. Both apply only in respect of a claimant’s country(ies) of nationality or their country of former habitual residence if they have no country of nationality. Therefore, according to the Justice in Saint Paul, ss. 96 and 97 of the IRPA should not be referred to in considering a claimant’s risk in respect to their country of residence. Otherwise, this would involve “reading into the text of the Act a category of refugee protection claimants that is not provided for in the Act.”Footnote 46

[58] I agree that the Convention and the IRPA provide no basis for the RPD and the RAD to find that a claimant is a Convention refugee or person in need of protection in relation to their country of residence. However, that is not what is occurring when the RPD and the RAD assess the risk raised by claimants in respect of their country of residence. When the RPD and RAD take into account this risk, they are not considering whether a claimant should be granted refugee protection in relation to their country of residence. Instead, they are considering whether a claimant’s country of residence provides a form of surrogate protection for them such that they may be excluded from protection under Article 1E because they do not require international refugee protection.

[59] For example, if the RPD had concluded that Mr. XXXX had established a serious possibility of persecution in Brazil, it would not have granted him refugee protection in relation to Brazil. Instead, it would have found that he was not excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. It then would have moved on to examine the risk that Mr. XXXX raised in respect of his country of nationality, Haiti.

[60] When the RPD and the RAD apply the analysis that has been developed under ss. 96 and 97 of the IRPA when evaluating the risk raised by a claimant in respect of their country of residence, they are not—or should not be—directly applying those sections. Instead, they are using the analysis that has been developed under those sections to gauge whether a claimant’s country of residence provides a form of surrogate protection for them such that they do not need refugee protection and are thus excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA.

[61] I note that the Justice in Célestin found that the use of an analysis which focuses on risks similar in nature to those set out in ss. 96 and 97 would be appropriate if, contrary to his opinion, the RAD and RPD have the power to consider the risks faced by a claimant in their country of residence in cases such as the present.Footnote 47 Likewise, the Minister applies the same factors when determining whether to exercise its power to exempt an individual from the one-year bar on seeking a PRRA after their claim has been rejected.Footnote 48

Amendments to the Immigration and Refugee Protection Act​ in 2012

[62] Third, I address the reasoning set out in Célestin and adopted in Saint Paul that is based on an amendment to the IRPA’s PRRA provisions enacted by Parliament in 2012.Footnote 49 As noted below, my reading of the history and content of this legislative amendment differs from the analysis set out in Célestin. Specifically, I do not agree that the 2012 amendments to the IRPA provide evidence of Parliament’s intent to restrict to the PRRA stage any assessment of the risk raised by claimants in respect of their country of residence.

[63] The legislative amendments discussed in Célestin were contained in Protecting Canada’s Immigration System Act (Bill C-31)Footnote 50 which received royal assent on June 28, 2012. Bill C-31 was an omnibus bill that made a great many amendments to the IRPA. Among other things, Bill C-31 enacted previously unproclaimed provisions creating the RAD.Footnote 51 It also amended provisions contained in the Balanced Refugee Reform Act (Bill C-11)Footnote 52 that were passed in 2010 but that had never been proclaimed into force.Footnote 53

[64] The Justice in Célestin stated that the Federal Court of Appeal discussed certain shortcomings of the PRRA process in Zeng and that two years later, in 2012, Parliament intervened to resolve these shortcomings by amending s. 112 of the IRPA to add subpara. 112(2)(b.1)(i). The Justice states that this provision “expressly provides that the prohibition on making a PRRA application does not apply when a claim for refugee protection has been rejected by operation of Articles 1E and 1F of the Convention.”Footnote 54 He stated “[a]s a result of the [2012] amendment, Article 1E refugee protection claimants who appear before the RPD now have access to the PRRA mechanism.”Footnote 55 He inferred from this amendment that Parliament intended that any risk raised by claimants in respect of their countries of residence must solely be taken into account at the PRRA stage. With the greatest of respect, I have a different reading of the legislative history and content of this amendment.

[65] Section 112 of the IRPA governs applications for protection before removal (“PRRA applications”). Subsection 112(2) sets out situations in which a person is not permitted to make a PRRA application. Bill C-31 added to this subsection subpara. 112(2)(b.1)(i) which is the main provision discussed in Célestin.Footnote 56 When considered in its proper legislative context, it is difficult to see how the addition of subpara. 112(2)(b.1)(i) to the IRPA evinces an intention by Parliament that any risk raised by claimants in respect of their countries of residence must only be taken into account at the PRRA stage.Footnote 57

[66] First, the legislative history of the provision would suggest that its introduction was not connected to any remarks the Court of Appeal made about Article 1E or the PRRA process in Zeng. Subparagraph 112(2)(b.1)(i) was one of the unproclaimed provisions from Bill C-11 that was included in Bill C-31 in 2012.Footnote 58 Bill C-11 was first introduced by the government in March 2010 and received royal assent in June 2010. The Zeng decision was rendered in May 2010. This timing makes it unlikely that Parliament adopted this legislative amendment in response to the Zeng decision, as the decision was rendered two months after the provision was first introduced and a month before it was enacted.

[67] Second, subpara. 112(2)(b.1)(i) does not prohibit any group from making PRRA applications and it does not for the first time provide Article 1E claimants with access to the PRRA mechanism (as suggested in Célestin).Footnote 59 Instead, the provision enacts a one-year statutory bar on the making of PRRA applications following the rejection of a refugee claim. Three groups are excluded from this one-year bar: claimants who were excluded from protection under Article 1E; claimants who were excluded from protection under Article 1F; and claimants whose claims were deemed to be rejected because they were vacated by the RPD because of a misrepresentation. These groups continue to be permitted to make PRRA applications as before, including within the year following the rejection of their claims.

[68] When one considers the legislative history and content of the 2012 amendments, it appears that Parliament’s intention in enacting subpara. 112(2)(b.1)(i) was two-fold. First, it was to enact a one-year bar on the making of PRRA applications which would apply to most claimants. Second, it was to exempt from this one-year bar, claimants whose risk in their country of nationality had never been considered (claimants excluded under Article 1E and 1F) or had never been properly considered (in the case of those whose claims were vacated because they had made misrepresentations to the RPD).Footnote 60

[69] Overall, if it had been Parliament’s intention in enacting subpara. 112(2)(b.1)(i) in 2012 that only those delegated to make decisions on PRRAs would have the power to take into account the risk raised by claimants in respect of their country of residence, one would have expected a clearer statement of that intention. This is especially the case given the UNHCR’s position that the risk raised by claimants in respect of their country of residence must be assessed before they are found to be excluded from protection under Article 1E. It is also especially the case given that Parliament would in effect be removing from the RPD and the RAD a power that they had consistently been exercising for many years up to that point.

Concerns about efficiency and streamlining the refugee determination process

[70] The decision in Célestin discusses how the approach taken in that case would streamline the refugee determination process and make it more efficient. In my view, this is debatable as one of the practical effects of the Célestin/Saint Paul approach would be that, unlike in the past, persons delegated to make decisions on PRRAs would have to hold oral hearings in respect of all (or almost all) PRRA applications in cases such as the present. Oral hearings in PRRA applications would be required because allegations of risk raised by claimants almost always raise credibility issues and such credibility issues generally must be addressed in an oral hearing in order to comply with natural justice.Footnote 61 Since most of these allegations of risk are based on events that predated the claimant’s departure from their country of residence, the Célestin/Saint Paul approach would require that a second hearing be conducted in a great many cases to address allegations that could simply have been considered during a claimant’s first hearing before the RPD. It is difficult to see how this streamlines the refugee determination process or makes the process more efficient. In any event, concerns about administrative efficiency fall within the powers and responsibility of Parliament, not courts or administrative tribunals who are tasked with legal interpretation.

[71] For all the above reasons, the arguments put forward in Célestin and Saint Paul do not alter my conclusion that the RPD and RAD must take into account the risk raised by claimants in respect of their country of residence before finding them excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA in cases such as the present.

Mr. XXXX case

[72] In light of the above, I find that the RPD had both the power and obligation to take into account the risk raised by Mr. XXXX in respect of Brazil before finding that he was excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. However, I find that the RPD erred in evaluating this risk after it had already found that he was excluded from protection under Article 1E. It should have assessed the risk alleged by Mr. XXXX before making a finding on the exclusion issue.

[73] In my view, the RPD did not err in using the same kind of analysis that would otherwise be used under sections 96 and 97 of the IRPA in its consideration of the risk raised by Mr. XXXX in respect of Brazil. In doing so, the RPD was not applying those sections to Mr. XXXX. Instead, it was using the general analysis applied under those sections as a means of assessing whether Brazil provided Mr. XXXX the kind of surrogate protection that would give rise to his exclusion from refugee protection under Article 1E.

[74] As described below, the RPD did not err in concluding that Mr. XXXX had failed to credibly establish that he would face a serious possibility of persecution if he returned to Brazil. It also did not err in finding that he failed to credibly establish that he likely would be subjected to a danger of torture, a risk to his life, or the risk of cruel and unusual treatment or punishment in Brazil.

Contradiction and omission in evidence undermine credibility

[75] I do not agree with Mr. XXXX counsel that the RPD failed to take into account the cruel and unusual punishment that Mr. XXXX faced in Brazil. The RPD did take into account Mr. XXXX allegations of mistreatment in Brazil, but it did not find them credible due to a contradiction and an omission in his evidence about this mistreatment.

[76] I agree with the RPD that the credibility of Mr. XXXX account of the incident in which he was hit by a car was adversely affected by the contradiction in his evidence as to whether he was riding a bicycle or driving a motorcycle at the time. In his Basis of Claim form, Mr. XXXX stated that he was riding a bicycle (“vélo”) during the incident whereas he testified that he was driving his motorcycle (“moto”) when he was hit by the car.Footnote 62 When the RPD asked Mr. XXXX about the contradiction, he replied that he had told his counsel that he was driving a motorcycle but his counsel wrote that it was a bicycle in his narrative. He then said that he had watched French movies and thought that the words bicycle and motorcycle meant the same thing.Footnote 63

[77] I do not agree with Mr. XXXX counsel that this was a satisfactory explanation for the contradiction. While Counsel argues that Mr. XXXX does not understand French properly, Mr. XXXX in fact signed Declaration A on his Basis of Claim form in which he declared that he read French and that he was able to read and understand the contents of the form and all documents attached to the form. He also declared that the contents of the form were complete, true, and correct at the outset of the hearing. In addition, he testified that he understood French well enough to testify in French throughout the first hearing day.Footnote 64 In these circumstances, I find that the RPD was correct to find that Mr. XXXX had failed to satisfactorily explain the contradiction in his evidence regarding the incident and that this adversely affected the credibility of his account of the incident.

[78] I agree with the case law cited by Mr. XXXX counsel in the appeal memorandum to the effect that the RPD must base adverse credibility findings on real contradictions that are significant and not merely peripheral in nature.Footnote 65 However, in my view, the contradiction as to the vehicle Mr. XXXX was riding or driving at the time he was run over is not simply a peripheral detail. It is a significant element of the incident alleged by Mr. XXXX and the contradiction in his evidence raises concerns as to the credibility of his allegations about the incident.

[79] Counsel does not specifically address in the appeal memorandum the omission in Mr. XXXX evidence that led the RPD to draw a further negative inference as to Mr. XXXX credibility. As noted by the RPD, Mr. XXXX testified that, when he was at work, people wanted to assault him or fight with him.Footnote 66 When the RPD followed up to ask Mr. XXXX how frequently this occurred, he replied that it did not occur often but when it did he told his supervisor about it and his supervisor just told him to remain calm. When asked why he had not mentioned, in his written narrative, that people at work wanted to assault him or fight with him, Mr. XXXX replied that he did not think the events that occurred in Brazil would make a difference as he thought his claim would be based on events in Haiti.Footnote 67

[80] I agree with the RPD that this explanation was not satisfactory as Mr. XXXX indicated in his Basis of Claim form that he was at risk of serious harm in Brazil.Footnote 68 Also, in his written narrative, he had included allegations regarding the risk that Haitians in general face in Brazil. In addition, he included the alleged incident in which the car hit him and added that people often insulted him in Brazil. He also submitted into evidence news articles about the treatment of Haitians by Brazilians. Based on this, Mr. XXXX clearly understood that his experiences in Brazil were relevant to his claim. I also note that he was represented by counsel at the time that he completed his Basis of Claim form. Nevertheless, he omitted any mention of people wanting to assault him or fight with him at work. Taking these factors into account, I agree with the RPD that it was not a satisfactory explanation for the omission for Mr. XXXX to claim that he did not think it was important to address the harm he faced in Brazil.

[81] I agree with the RPD that the omission adversely affected Mr. XXXX credibility regarding his account of events that he personally experienced in Brazil. Once again, I do not find that this omission simply relates to peripheral information. Instead, it relates specifically to the core of the allegations of persecution and serious harm raised by Mr. XXXX in relation to Brazil. Therefore, the RPD was correct to find that the contradiction and omission discussed above undermined the credibility of Mr. XXXX evidence regarding events in Brazil. They were sufficient to rebut the presumption of truthfulness that attaches to Mr. XXXX testimony in this case.Footnote 69

[82] In any event, as detailed in the next section, even if I were to accept Mr. XXXX account of events in Brazil to be credible, these events are insufficient to establish that he faces a forward- looking risk of persecution or serious harm in Brazil such that he should not be excluded from refugee protection.

No forward-looking risk of persecution or serious harm

[83] When the RPD asked Mr. XXXX what he feared in Brazil, Mr. XXXX testified that he feared that he would suffer the same treatment he experienced when he lived in Brazil. He testified that Brazilians do not want to see Haitians anymore. He said that Haitians have been discriminated against everywhere since the end of 2014, as Brazilians accused Haitians of stealing their jobs and persecuted, attacked, and hassled them. In terms of his own personal experiences of mistreatment, Mr. XXXX raised the bicycle incident, the incidents where people wanted to assault him or fight with him at work, and various other incidents in which he was insulted and in which others were served before him in line-ups.

[84] Even when the incidents described by Mr. XXXX are considered cumulatively and against the backdrop of the National Documentation Packages (“NDPs”) for Brazil and Haiti, they are insufficient to establish that he would face a serious possibility of persecution due to his race or Haitian nationality if he returned to Brazil. As acknowledged by the RPD, Mr. XXXX had filed news articles reporting on discrimination and on certain attacks faced by Haitians in Brazil. The NDPs for Haiti and Brazil similarly include evidence of the discrimination that Haitians face in Brazil as well as incidents of violence that have occurred to members of the Haitian community in Brazil.Footnote 70 There is also evidence in the NDP for Brazil that the human rights situation in the country has worsened in the past couple of years.Footnote 71

[85] As concerning as this situation may be, I find that it does not establish that Mr. XXXX would face a serious possibility of persecution if he returned to Brazil. While all discrimination is unacceptable, not all discrimination amounts to persecution. For discrimination against a person to amount to persecution, it must be serious and occur with repetition, and it must have consequences of a prejudicial nature for the person, such as the denial of a core human right, such as the right to practice religion or to earn a livelihood.Footnote 72 Expressed differently, persecution refers to a “sustained or systematic violation of basic human rights demonstrative of a failure of state protection.”Footnote 73

[86] There exist laws in Brazil prohibiting racial discrimination and incitement of racial discrimination. These laws are generally enforced by state authorities. While the evidence in the NDP for Brazil and the news articles submitted by Mr. XXXX speak to incidents of discrimination and violence towards Haitians and Afro-Brazilians in Brazil, I do not find that the discrimination and violence described in this evidence is sufficiently sustained or systemic to rise to the level of persecution. Likewise, Mr. XXXX general statement that Haitians are blamed for taking jobs away from Brazilians and his allegations of discrimination fall short of the sustained or systemic discrimination required to establish persecution. I note that Mr. XXXX was employed for much of the time he spent in Brazil except for the last year or so that he was there. Even when considered cumulatively and against the backdrop of the NDP for Brazil, this period of unemployment and the incidents of discrimination he alleged are not sufficient to establish a serious possibility that he would be persecuted because of his race or nationality if he returned to Brazil. They also do not establish a likelihood that he would be subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment in Brazil.

[87] In sum, I find that the RPD did not err in finding that Mr. XXXX failed to establish a forward-looking serious possibility of persecution on a Convention ground if he returns to Brazil. It also did not err in finding that he failed to establish a likelihood that he would be personally subjected to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment in Brazil. Therefore, the RPD correctly found that Mr. XXXX is excluded from refugee protection as he had the benefit of a form of safe surrogate protection in Brazil where his permanent resident status gave him access to substantially the same rights and obligations as nationals of that country.

Conclusion

[88] For the above reasons, I dismiss the appeal and confirm the RPD’s decision that XXXX XXXX XXXX is excluded from refugee protection by the combined effect of Article 1E of the Convention and s. 98 of the IRPA.

Signed: Jo-Anne Pickel

Date of amended decision: December 8, 2020

Date of original decision: November 9, 2020

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