Celestin v. Canada (Citizenship and Immigration)

Celestin v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2020-01-22
Neutral citation
2020 FC 97
File numbers
IMM-977-19
Notes
A correction was made on January 28, 2021
Reported Decision
Decision Content
Date: 20200122
Docket: IMM-977-19
Citation: 2020 FC 97
[REVISED ENGLISH TRANSLATION]
Ottawa, Ontario, January 22, 2020
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN:
MARIE LUNA CELESTIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
Nature of the case
[1] In this case, the two parties are seeking clarification on the tests applicable to the analysis of Article 1E of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 137 [Convention], and section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The applicant is seeking judicial review of a decision made by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada, dated December 20, 2018, which confirmed the decision of the Refugee Protection Division [RPD], according to which the applicant is not a refugee or a person in need of protection in Canada under Article 1E of the Convention and section 98 of the IRPA, because she has all the rights and obligations attached to the possession of Brazilian nationality and therefore is not a Convention refugee or person in need of protection under sections 96 and 97 of the IRPA.
[3] The applicant claims to have done everything possible to fulfill the conditions allowing her to rebut the prima facie presumption of permanent residence and requests clarification of those conditions. She admits that there is prima facie evidence that she had permanent resident status in Brazil, but she disputes the weight of this evidence, that is, the importance given to the fact that her name is on the list accompanying the Brazilian Ministerial Order. She submits that the Order merely authorizes persons on the list to acquire permanent resident status.
[4] For his part, the respondent is asking this Court to end the debate on whether the RPD and the RAD should analyze a refugee protection claimant’s fear of persecution or the risk of harm to which they are exposed in the country of residence before or after determining whether a claimant is referred to in Article 1E of the Convention under the first prong of the test set out in Zeng (Canada (Citizenship and Immigration) v Zeng, 2010 FCA 118, [2011] 4 FCR 3 [Zeng]).
[5] In the event that such a risk analysis must be carried out before making a decision on the application of Article 1E, the respondent proposes a broad interpretation of section 98 of the IRPA by the RPD and the RAD allowing this kind of analysis.
[6] For the reasons that follow, this application for judicial review is dismissed.
Facts
[7] The applicant is a Haitian citizen born in 1986 and the mother of a young boy. In Haiti, she worked as a merchant. She alleges having seen her husband with another woman. She also alleges that he squeezed money out of her continuously for months. On November 12, 2012, the applicant allegedly confronted her husband about his infidelity. The husband allegedly assaulted the applicant, and she had to go to the hospital for treatment. The police then allegedly asked the husband to leave the house.
[8] On November 27, 2012, her husband allegedly returned to her home and asked her for money. After the applicant refused, he allegedly ransacked the house. The police then arrested the husband, who then allegedly threatened the applicant.
[9] In December 2012, the applicant fled Haiti and settled in Brazil until July 2016. In December 2016, she arrived in the United States and remained there until she crossed the Canadian border in July 2017. She left the United States because she was afraid of being deported by the Trump administration.
[10] On August 25, 2017, the applicant completed a Basis of Claim Form [BOC Form]. In her BOC Form, she indicated that she feared suffering serious harm in Haiti and wrote about violent and criminal events concerning her husband.
[11] In the same BOC Form, the applicant stated that she had lived a life of misery and discrimination in Brazil amounting to persecution. In Brazil, she was often bothered by police in search of money or sexual favours. In addition, she alleges that she was the victim of theft in Brazil when she was about to send money to her daughter. She was unemployed in Brazil.
[12] The applicant alleges that her husband is part of a group engaged in criminal activities such as extortion and sexual exploitation in Haiti, and that he regularly tells her sister that he will make her pay for all the harm that she did to him. In addition, the applicant alleges that her husband is considered to be a dangerous individual, and that he may have obtained a visa for Brazil. The applicant claims to be certain that her husband will kill her.
[13] On December 18, 2017, the Minister of Immigration, Refugees and Citizenship intervened and stated, in his submissions, that the applicant should be excluded from the protection granted by Canada to refugees because of her permanent resident status in Brazil.
[14] The RPD held two hearings (January 8, 2018, and January 24, 2018) regarding the applicant’s refugee protection claim. At the first hearing, the RPD questioned her about her status in Brazil. The applicant replied that she had the so-called [translation] “protocol” status, which she had to renew every year. The panel then informed the applicant that it was satisfied that it had been provided with prima facie evidence that she had permanent resident status in Brazil.
[15] Things then became somewhat muddled.
[16] The applicant stated that she did not obtain permanent residence because her name was not yet on the list of candidates. After being questioned about this, the applicant changed her testimony and replied that her name was on the list, but that she had not been granted permanent residence.
[17] She then changed her testimony once again, stating that she did not even know that her name was on the list. Later during the same hearing, the applicant admitted that she had made no effort to acquire permanent residence since she did not know that her name was on the list.
[18] Her counsel then contradicted this testimony by claiming that he had informed the applicant of the existence of the list submitted by the Minister. Since there was some confusion in the presentation of the evidence, the panel granted a postponement of the hearing to allow the applicant to clarify her immigration status.
[19] At the second hearing, the applicant stated that she had made no further effort to clarify her immigration status. Her counsel indicated that she had obtained a document from the Brazilian consulate describing the procedure to be followed to verify her status in Brazil.
[20] Obliged to address the fact that there were ways to verify her immigration status, the applicant alleged that she had nothing but a C.P.F. card (Cadastro de Pessoas Fisicas - Registration of Natural Persons) from Brazil in her possession. The card entitles the holder to public transportation and medical care. This card does not establish the holder’s immigration status.
[21] At that same hearing, the applicant further described her fear of persecution in Brazil. She alleged that Brazilians are racist towards Afro-Brazilians (as well as Haitians) and that she was robbed when she tried to send funds to her family in Haiti. The applicant stated that she was sexually harassed and extorted by Brazilian police. In addition, she is afraid to return to Brazil after learning that her husband had obtained a visa for Brazil. However, she admitted that she did not know if her husband even went to Brazil.
[22] On Friday, February 2, 2018, the RPD rejected the applicant’s claim for refugee protection. The RPD determined that the applicant was not a Convention refugee or a person in need of protection pursuant to section 98 of the IRPA. The RPD found that the applicant had the permanent resident status in Brazil, which essentially gives her the same rights as Brazilian nationals. The RPD also found that the applicant did not do everything she could to verify her immigration status in Brazil.
[23] The RPD then analyzed the applicant’s perceived fear of persecution or harm in the event of her removal to Brazil, to determine whether subsection 97(1) of the IRPA applied in this case. According to the RPD, the applicant failed to demonstrate that racist attitudes in Brazil amount to persecution. The RPD believed that her being robbed arose rather from widespread crime in Brazil. In addition, the RPD found that the applicant’s chances of meeting her husband in Brazil were academic.
RAD decision
[24] Before the RAD, the applicant essentially challenged the RPD’s conclusions.
[25] The applicant claims that she had discharged her burden of establishing that she was not a permanent resident of Brazil by contacting the Brazilian consulate in Montréal, Brazil’s federal police and a non-governmental organization in Brazil. In a decision dated December 20, 2018, the RAD confirmed the RPD’s determination. According to the RAD, the applicant’s rather inconsistent testimony on the steps she had taken and a copy of her C.P.F. card were insufficient to rebut the prima facie presumption that she had permanent resident status in Brazil.
[26] Regarding the applicant’s fear of persecution in Brazil, the RAD confirmed the RPD’s conclusion that the applicant had not established that she feared being persecuted. The RAD devoted 13 paragraphs to an analysis of this fear, after which it concluded that the applicant had all the rights and obligations associated with Brazilian nationality. According to the RAD, the applicant’s fear of her husband’s possible arrival in Brazil was not supported by sufficient evidence and was therefore rather speculative.
[27] The RAD also found that the evidence filed by the applicant did not support the conclusion that she would be the victim of personalized persecution if she were removed to Brazil. In addition, the RAD determined that the theft suffered by the applicant was an isolated criminal incident in Brazil. For these reasons, the RAD concluded that the applicant did not establish the existence of a serious risk of persecution and did not satisfy the RAD that she was a person to be protected within the meaning of section 97 of the IRPA.
[28] The RAD did not mention the incident in which the applicant was threatened by Brazilian police officers and did not feel the need to analyze the adequacy of state protection or the internal flight alternative.
[29] The RAD therefore dismissed the appeal.
Issues
[30] This case raises two issues:
(1) Did the RAD make a reviewable error in concluding that the applicant was referred to in Article 1E of the Convention?
(2) Did the RAD err in analyzing the fear of persecution (under section 96 of the IRPA) and the risk of serious harm (under paragraph 97(1)(b) of the IRPA) after finding that the applicant was referred to in Article 1E of the Convention?
Standard of review
[31] In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court established a revised analytical framework for determining the standard of review applicable to administrative decisions. Under this analytical framework, the starting point is a presumption that the standard of review is that of reasonableness (Vavilov at para 23). This presumption can be rebutted in two types of situations: where there is a statutory appeal mechanism or where the rule of law requires that the standard of correctness be applied (Vavilov at para 17).
[32] However, in this case, none of the situations justifying a derogation from the strong presumption of reasonableness review apply here. The legislature has not provided for an appeal mechanism for the issues raised in this case. The issue of interpretation of Article 1E (of the Convention) and sections 96, 97 and 98 (of the IRPA) falls within the delegated jurisdiction and expertise of the RAD, and does not have a significant impact on the legal system as a whole. In light of this, I do not believe that this case raises the (rare) types of legal issues that warrant a higher standard of review (Vavilov at paras 58–62, 69). I therefore conclude that the immigration officer’s decision is reviewable against a reasonableness standard (Vavilov at paras 73–142).
Analysis
(1) Preliminary remarks on the test developed in Zeng
[33] The case before me provides this Court with an opportunity to clarify the analytical framework for Article 1E of the Convention. In Zeng, the Federal Court of Appeal established a test that serves as the starting point for the entire analysis of Article 1E:
[28] 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.
[34] This test has three prongs. Under the first prong, the decision maker must ask whether the claimant has status substantially similar to that of nationals of the country in question. It is here that the decision maker must examine whether the claimant enjoys substantially the same rights as a national of the country referred to in Article 1E of the Convention. This analysis concerns the rights and protections provided by the state referred to in Article 1E of the Convention.
[35] In Shamlou v Canada (Minister of Citizenship and Immigration), [1995] FCJ No 1537, 103 FTR 241 at paragraph 35 [Shamlou]) [see also Canada (Minister of Citizenship and Immigration) v Choovak, 2002 FCT 573 (CanLII) at paras 31–34], this Court recognized four of these rights:
(a) the right to return to the country of residence;
(b) the right to work freely without restrictions;
(c) the right to study; and
(d) full access to social services in the country of residence.
[36] The decision maker has a duty to determine whether the claimant has status substantially similar to that of nationals of that country and whether the claimant enjoys each of those four rights (Vifansi v Canada (Minister of Citizenship and Immigration), 2003 FCJ No 397, 2003 FCT 284 at para 27; Mahdi v Canada (Minister of Citizenship and Immigration), [1994] FCJ No 1691 (1994), 86 FTR 307).
[37] If the answer is yes, the exclusion codified in Article 1E applies (Zeng at para 28). The analysis stops there.
[38] If the answer is no, the decision maker must continue the analysis because failing to do so is a reviewable error (Xu v Canada (Citizenship and Immigration), 2019 FC 639 at para 44 [Xu]).
[39] In the second stage, the decision maker must ask whether the claimant had lost resident status or could have acquired it by reasonable means, but did not do so. If the answer is no, the analysis ends, since the applicant is not excluded under Article 1E (Molano Fonnoll v Canada (Citizenship and Immigration), 2011 FC 1461 at paras 29–31). The claimant’s case will then be examined on the basis of sections 96 and 97 of the IRPA.
[40] If the answer at this second stage is affirmative, 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” (Zeng at para 28; Mojahed v Canada (Citizenship and Immigration), 2015 FC 690 at paras 27–28 [Mojahed]).
[41] The assessment of these factors is made at the third stage of the test established in Zeng and must be done when the claimant has lost their status or has not taken steps to acquire a status similar to nationals of the country in question.
[42] This analysis is applied so as to fulfill the purposes of Article 1E of the Convention, and that is why Parliament has incorporated this exception into Canadian law by way of section 98 of the IRPA (Zeng at para 19). This discourages “asylum shopping” and precludes an individual from acquiring refugee protection if the individual has surrogate protection in a country where the individual enjoys substantially the same rights and obligations as nationals of that country (Zeng at para 1; Fleurant v Canada (Citizenship and Immigration), 2019 FC 754 at para 16 [Fleurant]; Mai v Canada (Citizenship and Immigration), 2010 FC 192 at para 1 [Mai]).
(2) Did the RAD commit a reviewable error in concluding, under the first prong of the test established in Zeng, that the applicant was a permanent resident of Brazil?
[43] The respondent relied on four factors as prima facie evidence of the applicant’s status in Brazil. First, the applicant’s name is on a list of 43,781 Haitian nationals who have been granted permanent residence in Brazil by virtue of a ministerial order. Second, in January 2017, approximately 71% of these 43,781 Haitians had taken the administrative steps required to obtain permanent residence. Third, the applicant lived in Brazil for over three and a half years (from December 2012 until July 2016). Fourth, the respondent asserts that the Brazilian state confers on its permanent residents all the rights and obligations attached to the possession of the nationality of that country.
[44] The respondent contends that it was reasonable for the RAD to exclude the applicant under Article 1E of the Convention. According to the respondent, the RAD was correct in concluding that there was prima facie evidence establishing a presumption that the applicant was a permanent resident of Brazil, especially given the fact that she had lived in that country for more than two years. The applicant’s testimony and her C.P.F. card are not sufficiently compelling to rebut this presumption. In addition, the respondent believes that the RAD was not mistaken in finding that the applicant did not take steps to obtain permanent residence.
[45] The applicant alleges that the RAD committed a serious error in concluding that she had permanent resident status in Brazil. Although the applicant does not dispute that the four factors mentioned above constitute prima facie evidence of her permanent residence, she claims that the fact that her name was on the list accompanying the ministerial order only proves that she is authorized to initiate steps to obtain permanent residence in Brazil, not that she automatically acquired Brazilian residence as a Haitian national. In addition, the applicant alleges that the RAD placed too much weight on this evidence and downplayed the testimonial and documentary evidence establishing that she never had permanent resident status in Brazil. She is uncertain about the burden of proof she has to discharge to rebut the prima facie evidence presented against her.
[46] These arguments relate to the RAD’s decision under the first prong of the test established in Zeng. As I explained above, the first prong of the Zeng test concerns the question of whether the refugee protection claimant has status substantially similar to that of the third country nationals. The appellant’s status must be considered as of the last day of the hearing before the RPD (Majebi v Canada (Citizenship and Immigration), 2016 FCA 274 at para 7 [Majebi]; Zeng at para 16; Lorne Waldman, The Definition of Convention Refugee, 2nd ed (Toronto: LexisNexis Canada, 2019) at pp. 545 and 546) and on a balance of probabilities (Mikelaj v Canada (Citizenship and Immigration), 2016 FC 902 at paras 26–27 [Mikelaj]; Ramirez v Canada (Citizenship and Immigration), 2015 FC 241 at paras 22–24). If the answer to this question is yes, the claimant is excluded. If the answer is no, the analysis continues (Zeng at para 28).
[47] I do not agree with the applicant’s argument. Although I agree that the fact that her name is on the list merely establishes that she is authorized to complete the administrative formalities required to obtain permanent resident status, the fact remains that these administrative formalities are straightforward. The applicant accepts that the items submitted are prima facie evidence of permanent resident status.
[48] The Minister has the burden of establishing that the applicant, at first glance, has status substantially similar to that of nationals of the country referred to in Article 1E of the Convention. In this case, he discharged this burden.
[49] These elements are sufficient to constitute prima facie evidence of the applicant’s status in Brazil and to shift the burden of proof to the applicant (Noel v Canada (Citizenship and Immigration), 2018 FC 1062 at paras 7, 16– 21 [Noel]). The applicant does not challenge this conclusion.
[50] Once this case is established, the applicant is presumed to hold permanent resident status in the third country. It is trite law that the onus shifts to the applicant once the Minister has provided prima facie evidence that satisfies the first prong of the Zeng test (Shahpari v Canada (Minister of Citizenship and Immigration), 1998 CanLII 7678 (FC) at para 12; Canada (Citizenship and Immigration) v Tajdini, 2007 FC 227 at paras 36, 63; Mai at para 34; Hussein Ramadan v Canada (Citizenship and Immigration), 2010 FC 1093 at para 18 [Hussein Ramadan]).
[51] It is then up to the applicant to demonstrate that she was not a permanent resident of Brazil or that the Brazilian state did not confer on her all the rights and obligations attached to the possession of Brazilian nationality.
[52] However, the applicant’s status appears to be ambiguous. In her claim for refugee protection, the applicant stated that she was a temporary resident during her time in Brazil. However, before the RPD, the applicant claimed to have so-called [translation] “protocol” status. She never presented an identity document establishing this status. At her first hearing before the panel, the applicant admitted that she had made no effort to obtain permanent residence, since she did not know that her name was on the list. The panel granted the applicant a postponement of the hearing (of more than two weeks) following some confusion in which counsel for the applicant contradicted her testimony by stating that he had informed the applicant of the existence of the list submitted by the Minister. At the second hearing, the applicant filed in evidence her C.P.F. card from Brazil, a card which does not indicate her immigration status. At the same hearing, the applicant stated that she had obtained a document from the Brazilian consulate describing the procedure to follow for checking one’s status. The applicant explained that she had not contacted Brazil after the RPD issued its decision. In her memorandum, the applicant states that she does not know her status in Brazil.
[53] The applicant’s evidence wavers between certainty (temporary residence, [translation] “protocol” status) and uncertainty. The applicant has not alleged that the Brazilian state has refused to grant her rights and protection, be it in terms of health care, education, government services or social security (the rights and obligations enumerated in the Shamlou decision), or she was unable to prove it. In addition, the applicant made little effort to seek clarification of her status in Brazil, where she lived for more than three years.
[54] The applicant failed to discharge the burden of proof on her (Dieng c Canada (Citoyenneté and Immigration), 2013 CF 450 at paras 23–34). In the circumstances, I do not see anything unreasonable in the RAD’s decision on this issue.
[55] The first question forming part of the Zeng test must therefore be answered in the affirmative. Since the answer is affirmative, the exclusion codified in Article 1E of the Convention applies, and the analysis based on Article 1E must stop at the first prong (Zeng at para 28). Pursuant to section 98, the applicant was not protected by the IRPA in the context of the decisions of the RPD and the RAD.
(3) Reasonableness of the analysis of the fear of persecution and the risk of serious harm in relation to the country of residence
[56] The applicant argues that in addition to the risks specific to Brazil, the RAD should have analyzed the risks specific to Haiti.
[57] I disagree. Although it may be useful to conduct a risk analysis for the country of which she is a citizen to avoid having to refer the matter back to the RAD at a later stage, this analysis only becomes necessary under the third prong of the Zeng test. Assuming that there is a risk assessment to be undertaken in the context of an Article 1E exclusion, the only relevant country is the country of residence (Milfort-Laguere v Canada (Citizenship and Immigration), 2019 FC 1361; Gonzalez v Canada (Minister of Employment and Immigration), [1994] 3 FC 646, 1994 CanLII 3486 (FCA); Lorne Waldman, Immigration Law and Practice, 2nd edition (loose leaf) at para 8.518.1).
[58] The applicant claims that the RAD’s analysis of the fear of persecution in Brazil was premature and did not take into account all of the evidence on the record. On appeal, the applicant alleged that the RPD had not questioned her on all of the evidence related to her fear of persecution in Brazil.
[59] I agree with the applicant that the RAD’s analysis is unreasonable because it did not properly respond to all of the evidence related to her fear of persecution.
[60] After concluding that the applicant had not discharged the burden of establishing that she did not have permanent resident status, the RAD turned to the RPD’s risk of persecution analysis. One of the fundamental issues in this case appears to be the applicant’s fear of persecution, the applicant having raised four fears of persecution in relation to her country of residence.
[61] First, the applicant mentioned a fear of meeting her husband, who has allegedly been given a visa for Brazil. The RAD confirmed the RPD’s conclusion that this allegation was inconsistent and unfounded. At the hearing, the applicant testified that her husband was still in Haiti, but that she feared that he would go to Brazil and find her. Like the RPD, the RAD found that the applicant did not establish that the husband had the intention or the means to travel to Brazil. This finding is not unreasonable.
[62] Second, the applicant alleged that she was at risk of persecution because of the widespread racism against Afro-Brazilians in Brazil. Like the RPD, the RAD concluded that the evidence filed by the applicant did not establish that there is a systematic violation of human rights in Brazil. Again, there is nothing unreasonable in this conclusion (Noel at para 30; Simolia c Canada (Citoyenneté et Immigration), 2019 CF 1336 at paras 26–27).
[63] However, the analysis of the following two fears is problematic.
[64] Third, the applicant indicated that she was sexually harassed and extorted by Brazilian police. The RAD did not analyze the fear of persecution arising from the sexual harassment and extortion by the Brazilian police. In her BOC FORM, the applicant stated that she was [translation] “often bothered by police officers asking for money or sexual favours when I said that I did not have any”. It is obvious that the applicant perceived certain Brazilian police officers as agents of persecution and that this could raise a doubt about the adequacy of state protection in Brazil. However, the RAD did not mention this subject in its decision and even held that it was not necessary to address the applicant’s arguments regarding the adequacy of state protection in Brazil.
[65] Fourth, the applicant claimed that she was the victim of theft in Brazil, of an amount she was preparing to send to her daughter. In her BOC Form, the applicant mentioned a robbery that allegedly took place in July 2016 during which [translation] “a man pointed his gun at [her], while another took the money”.
[66] This fear also was not subjected to a sufficiently rigorous analysis. At the hearing before the RPD, the applicant testified that she did not feel safe in Brazil, relying in support of this allegation on the theft of which she was a victim, the impeachment of Brazil’s former president and the racist climate prevailing in Brazil. After hearing this allegation, the RPD member asked the applicant a question about the source of her income, but did not ask her about the theft as such.
[67] The RAD, for its part, did not analyze this incident to determine whether the perpetrators of the theft were motivated by racist or sexist reasons. Instead, the RAD, like the RPD, simply concluded that this incident was an isolated criminal incident in the context of high crime in Brazil. In the case of the RAD, the panel relied on the documentation from the National Documentation Package and concluded that the theft was an isolated criminal incident.
[68] In short, the RAD decided to disregard this fear of persecution on the basis of general reasons which ignored the details of the theft the applicant was a victim of. Yet, the RAD should have closely analyzed the evidence related to the theft suffered by the applicant in order to assess the adequacy of the protection afforded to her by the Brazilian state. Given the importance of the decision for an “individual’s rights and interests”, the reasons provided by the RAD should have addressed these “concerns” raised by the applicant (Vavilov at paras 127–133).
[69] The failure of the RAD to fulfil its duty of making findings of fact on important issues is a reviewable error in the assessment of the facts (Vavilov at paras 126–128; Feboke v Canada (Immigration, Refugees and Citizenship), 2017 FC 855; Colmo v Canada (Citizenship and Immigration), 2018 FC 931 at para 7). In addition, the RAD failed to provide an explanation for the gaps in its analysis (Magonza v Canada (Citizenship and Immigration), 2019 FC 14 at para 11).
[70] These errors alone are subject to judicial review.
[71] However, in this case judicial intervention is inappropriate because, as I will explain, the analysis for Brazil is unnecessary and not determinative.
(4) Did the RAD err in analyzing the fear of persecution (under section 96 of the IRPA) and the risk of serious harm (under paragraph 97(1)(b) of the IRPA) after finding that the applicant was referred to in Article 1E of the Convention?
[72] The applicant claims that the RAD erred in analyzing the fear of persecution (under section 96 of the IRPA) and the risk of serious harm (under paragraph 97(1)(b) of the IRPA) after finding that the applicant was referred to in Article 1E of the Convention. The applicant’s argument is based primarily on her interpretation of Romelus v Canada (Citizenship and Immigration), 2019 FC 172 [Romelus]. According to the applicant, the RAD should have analyzed the fear with respect to the country of permanent residence (Brazil) before declaring that she is referred to in Article 1E of the Convention. The fear of persecution alleged by the applicant arises from the climate of racism towards Haitians allegedly reigning in Brazil, a robbery and alleged act of aggression against the applicant in Brazil, and the possibility that her husband is in the Brazil.
[73] The respondent admits that the RAD erred in basing its analysis on section 97 of the IRPA, but submits that the analysis was reasonable because the applicant’s fears did not meet the persecution threshold.
(a) RAD’s analysis
[74] After concluding that the applicant had not discharged her burden of establishing that she did not have permanent resident status, the RAD turned to the RPD’s risk of persecution analysis. After its (problematic) analysis of the fear felt by the applicant in Brazil, the RAD concluded that the applicant did not establish that she was exposed to a serious risk of persecution or that she was a person to be protected under the meaning of section 97 of the IRPA. The RAD held as follows at paragraphs 41 and 43:
[41] In light of the evidence just discussed in paras. 37-39 above, the RPD did not err in finding that the Appellant had not established a serious possibility of persecution because of her race or nationality if she were to return to Brazil.
. . .
[43] Therefore, I agree with the RPD that the appellant has not established as serious risk of persecution based on any Convention ground, nor that she is a person in need of protection within the meaning of s. 97 of the IRPA in Brazil.
[75] In this passage, the RAD refers to section 97 of the IRPA and alludes to the risk of persecution test recognized in section 96 of the IRPA to frame or guide its analysis concerning the applicant’s country of residence. In the RAD’s reasons, this risk analysis is presented as a component of Article 1E of the Convention.
[76] Sections 96 and 97 should not be considered when determining whether a refugee protection claimant is covered by the first prong of the Zeng test. Such an analysis is not relevant since the criteria in sections 96 and 97 of the IRPA only refer to a person’s country of nationality or country of habitual residence, in the case of persons without a country of nationality:
Convention refugee
Définition de réfugié
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
97(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Person in need of protection
Personne à protéger
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
[77] Assuming that a risk analysis was even necessary, putting aside the reference to sections 96 and 97, the RAD performed the appropriate analysis because it focused on the risks to which the applicant was exposed in Brazil, and which were similar in nature to those set out in sections 96 and 97.
[78] For his part, the respondent recognizes that its analysis of the fear felt by the applicant in Brazil based on sections 96 and 97 of the IRPA was an error of law since any analysis of risk must relate to the country of citizenship and not to the country of residence. The country of residence is not mentioned anywhere in these provisions. The respondent adds that the order in which the panel examined the rights conferred on a person and the risks to which he or she is exposed in the third country is immaterial, because all the conditions must be fulfilled before the exclusion clause can apply. Assuming that such an analysis is necessary in this context, I agree with the respondent.
[79] However, the respondent nevertheless emphasizes that such a risk analysis is necessary in the context of the application of Article 1E of the Convention and section 98 of the IRPA, in the same way as for sections 96 and 97, but without mentioning these provisions. He submits that the RPD and the RAD should have examined the presence of a fear of persecution or risk in the country of residence (Brazil) when they were asked to determine whether a refugee protection claimant should be excluded by operation of Article 1E of the Convention.
[80] I do not agree with the respondent for the following reasons.
[81] As we will see later, this interpretation does not take into account the statutory context of the IRPA (Vavilov at paras 118, 121–122; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53; Hillier v Canada (Attorney General), 2019 FCA 44 at paras 24–25). Furthermore, such an analysis amounts to a modification of the criteria set out in Zeng (Vavilov at paras 111–112).
(5) Interpretation of the exclusion by operation of Article 1E
[82] The unnecessary analysis carried out under sections 96 and 97 of the IRPA therefore gives us an opportunity to reflect on the relevance of the risk analysis in relation to the country of residence carried out by the RPD and the RAD. This gives us the opportunity to reflect on the nature of Article 1E of the Convention and section 98 of the IRPA.
(a) Principles related to the interpretation of section 98 and Article 1E
[83] The Supreme Court of Canada and the Feder