Date: 20100823
Docket: IMM-6504-09
Citation: 2010 FC 833
Ottawa, Ontario, August 23, 2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
SOFIA
SOFI PEREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Applicant is a citizen of Cuba who came to Canada on a
temporary resident visa in November 2008. Once in Canada, she claimed
refugee protection pursuant to s. 96 and 97 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA). She claims a fear
of persecution by the government of Cuba because of her
perceived political opinion, and because she has overstayed her Cuban exit
visa.
[2]
In
a decision dated November 5, 2009, a panel of the Immigration and Refugee
Board, Refugee Protection Division (the Board) determined that the Applicant
was neither a Convention refugee nor a person in need of protection.
[3]
The
Applicant seeks judicial review of this decision.
II. Issues
[4]
This
application raises the following issues:
1.
Did
the Board err by finding that imprisonment for violating Cuba’s exit laws
does not amount to “persecution” under s. 96 of IRPA or “cruel and
unusual punishment” under s. 97 of IRPA?
2.
Did
the Board ignore the Applicant’s evidence and documentary evidence when concluding
that the mistreatment of the Applicant’s husband and daughter was not
politically-motivated?
III. The
Board’s Decision
[5]
The
Applicant’s arguments to the Board fell into two categories. Firstly, the
Applicant argued that she and her family had suffered persecution because of
their political opinions. This persecution continued against her husband and
daughter even after the Applicant’s departure from Cuba. Secondly,
the Applicant asserted that she would suffer persecution by being imprisoned
upon her return to Cuba for overstaying her Cuban exit visa.
[6]
The
Board examined the evidence before it to determine “how serious, persistent and
repetitive the mistreatment was and whether it was systematic”. The Board
concluded that there was no persuasive evidence that the claimant was facing
persecution “even if considered cumulatively”. In reaching this conclusion that
Board made the following findings:
·
The
Board noted that the Applicant’s fine for selling items on the black market was
imposed under Cuban laws whose purpose was to curb black-market activities. As
such, the Board concluded that “the claimant fears lawful sanctions that have a
valid purpose”.
·
The
behavioural disorders and inadaptability of her daughter at school were typical
of a 13-year old’s separation from her mother, and the school’s phone calls
home for the daughter’s absence caused no harm. The Board concluded that the
daughter was not being persecuted at school.
·
Although
the Applicant’s husband had lost his job, there is no evidence, beyond
speculation, that the job loss was due to the Applicant’s presence in Canada.
·
Because
the Applicant had been able to leave Cuba in 2008 on a legitimate visa, the
Board concluded that “if the person was a person of interest in Cuba, it is
unlikely that she would have been allowed to leave”. If the family members were
being persecuted for the Applicant’s beliefs, it is “reasonable to expect her
husband would have had more difficulty [when he was arrested for an illegal
internet connection]”.
[7]
The
Applicant also raised the possibility that she would be subjected to
imprisonment if she now returned to Cuba after overstaying her
Cuban exit visa. The Board acknowledged that she might be subjected to
imprisonment upon her return to Cuba. However, the Board
found that the punishment for this contravention of Cuba’s laws was
not “repetitive, persistent or extreme and thus cannot be considered
persecutory”. In addition, the Board noted that the law did not differentiate
along Convention grounds. Moreover, the situation of overstaying was of the
Applicant’s own making. Citing Valentin v. Canada (Minister of
Employment and Immigration), [1991] 3 F.C. 390, 167 N.R. 1 (F.C.A.), leave
to appeal dismissed, [1991] S.C.R. No. 430, (1992) 138 N.R. 406 (note), the
Board observed that “the claimant cannot now create a cause to fear persecution
by freely, without reason, make themselves liable to punishment for violating a
law of general application.”
[8]
The
Board separately considered the Applicant’s claim under s. 97 and concluded
that she was not a person in need of protection under s. 97.
IV. Analysis
A. Issue 1:
Over-staying exit visa
[9]
The
Applicant submits that the Board erred in finding that imprisonment for
violating Cuba’s exit laws
does not amount to “persecution” under s. 96 of IRPA or “cruel and
unusual punishment” under s. 97 of IRPA.
[10]
I
will assume, without deciding, that a standard of correctness is applicable to
the Board’s decision on the first issue. In other words, was the Board correct
to conclude that the Applicant’s risk of imprisonment in Cuba upon her return
did not amount to persecution under s. 96 of IRPA, or a risk of cruel
and unusual treatment under s. 97? As taught by the Supreme Court of Canada
case of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para. 50:
When
applying the correctness standard, a reviewing court will not show deference to
the decision maker's reasoning process; it will rather undertake its own
analysis of the question. The analysis will bring the court to decide whether
it agrees with the determination of the decision maker; if not, the court will
substitute its own view and provide the correct answer. From the outset, the
court must ask whether the tribunal's decision was correct.
[11]
The
Applicant came to Canada on November 18, 2008 on a Canadian temporary
resident visa. To leave Cuba, she obtained an exit permit, valid
initially for almost 3 months (Certified Tribunal Record (CTR), p.17). The
Applicant has made no efforts to renew her exit visa.
[12]
The
CTR contains some documentary evidence related to Cuban travel requirements
(see, in particular, CUB101911E, Responses to Information Requests (RIRs), CTR,
107-109). An exit visa can be renewed beyond the initial period of issuance for
up to 11 months. However, beyond 11 months, the Cuban citizen must request a
special permit to resume residence, which must be issued by the Cuban
diplomatic mission abroad. A 2005 Report of Human Rights Watch indicates that,
according to Article 215 of Cuba’s Criminal Code, “[i]ndividuals who enter Cuba
‘without completing legal formalities or immigration requirements’ risk one to
three years of imprisonment” (CTR, 225). However, the HRW Report contains no
explanation of the law or examples of its application. Nor did the Applicant
submit a copy of the relevant legislative provision or any other documentary
evidence showing that persons in her situation have been imprisoned upon their return.
[13]
The
Federal Court of Appeal decision in Valentin, above, is directly applicable
to this application. Valentin bars self-induced refugee status. It
starts from the premise that a claimant has a valid exit visa. It then bars the
claimant from overstaying the visa and relying on the self-created overstay as
a ground of persecution. In this case, the Applicant held a valid exit visa.
She failed to renew her permit, as she could have done. She cannot rely on
self-created overstay as a ground of persecution. Valentin has been
consistently followed in this Court where the facts are similar to those before
me; see for example, Jassi v. Canada (Minister of Citizenship and
Immigration), 2010 FC 356, [2010] F.C.J No. 412 (QL).
[14]
The
jurisprudence is to a similar effect in the context of a s. 97 claim for
protection. In Zandi v. Canada (Minister of
Citizenship and Immigration), 2004 FC 411, [2004] F.C.J. No. 503 (QL),
Justice Kelen considered the situation of an Iranian who defected to Canada while here
for an
athletic competition. In considering whether
the claimant could claim protection on the basis that he would be punished for
defecting on his return to Iran, Justice Kelen stated as follows:
To paraphrase the Federal Court of Appeal
in Valentin, supra, a defector cannot gain legal status in Canada
under IRPA by creating a "need for protection" under section 97 of IRPA
by freely, of their own accord and with no reason, making themselves liable to
punishment by violating a law of general application in their home country
about complying with exit visas, i.e. returning.
[15]
In
short, the jurisprudence is clear that the Applicant, who failed to renew her
valid exit visa, cannot rely on the possibility of punishment under Cuba’s Criminal
Code as grounds for protection under s. 96 or s. 97.
[16]
Moreover,
it is far from clear that the Applicant will be charged and convicted under the
applicable law. The documentary evidence demonstrates that the Applicant could
still apply for a special re-entry permit to return to Cuba. There is no
evidence that the Applicant would, with such a permit, be the subject of
prosecution under Cuban laws. The documentary evidence contains not a single
reference to a similarly-situated person being imprisoned pursuant to this law.
On the facts before me, the allegation of imprisonment is mere speculation.
There is simply insufficient evidence for me to find that the Applicant’s fear
of imprisonment is well-founded.
[17]
I
conclude that the Board was correct to conclude that the risk of imprisonment
in Cuba upon her
return did not amount to persecution under s. 96, or risk of cruel and unusual
treatment under s. 97.
B. Issue #2:
Failure to have regard to the evidence
[18]
In
spite of the correctness of the Board’s conclusion on Issue #1, it is still
possible that the Applicant could have satisfied the Board that she would
suffer persecution – beyond a speculative prison term – upon her return to Cuba. The
Applicant does not dispute the Board’s findings that her treatment prior to
leaving Cuba was not
persecution. However, she submits that the Board erred by failing to have
regard to the evidence that relates to the time after she left Cuba. In
particular, the Applicant argues that the Board failed to have regard to the
evidence that she presented about the treatment of her husband and daughter in Cuba after her departure.
[19]
The
Board’s conclusion on this issue is reviewable on the standard of
reasonableness. On this standard, the Court should not intervene where the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir, above, at para. 47). In addition, the
Court may grant relief if it is satisfied that the tribunal made its decision
without regard for the material before it (Federal Courts Act, R.S.C.
1985, c. F-7, s. 18.1(4)(d)).
[20]
Having
reviewed the Board’s decision, I am not persuaded that any evidence was
ignored. The Board makes explicit reference to the problems faced by the
husband and daughter after the Applicant’s departure.
[21]
The
Applicant merely presents to the Court interpretations of the evidence that are
different than those found by the Board. The Applicant’s conclusions may well
be reasonable. However, on a standard of reasonableness, there may be a range
of possible outcomes. As stated by Justice Binnie in the Supreme Court of Canada
case of Canada (Minister of Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at para. 59:
There
might be more than one reasonable outcome. However, as long as the process and
the outcome fit comfortably with the principles of justification, transparency
and intelligibility, it is not open to a reviewing court to substitute its own
view of a preferable outcome.
[22]
The
Applicant has not persuaded me that the findings of the Board are outside that
range of possible, acceptable outcomes. For example, it is not unreasonable to
find that the daughter’s problems relate, to a large degree, on separation from
her mother and not from persecution by her teachers or schoolmates. Similarly,
the evidentiary record supports a finding that the husband’s firing could have
been part of change in Cuba that resulted in many
people losing their jobs. It is not for this Court to substitute my own view of
a different outcome from that of the Board.
V. Conclusion
[23]
For
these reasons, this application for judicial review will be dismissed.
[24]
The
Applicant proposes the following question for certification:
Does
a sanction of imprisonment imposed on a claimant for protection for illegally
leaving or remaining outside his or her country automatically qualify as a
sanction “imposed in disregard of accepted international standards” under s.
97(1)(b)(iii) of IRPA?
[25]
I am
not prepared to certify this question. In this case, I have insufficient
evidence before me to find that Applicant would be subject to the sanction of
imprisonment upon her return. Accordingly, the question is not dispositive of
this application for judicial review.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
Email this Content