Date:
20120531
Docket:
IMM-8526-11
Citation:
2012 FC 673
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, May 31, 2012
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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RAIKO MIGUEL
PORTUONDO VASALLO
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is a 23-year-old Cuban citizen. He arrived in Canada with a temporary
exit visa as a member of a dance troupe invited to perform shows in Canada. At
the end of the trip, he failed to leave the country with the other members of
the group and claimed refugee protection.
[2]
He
based his claim on allegations of persecution and on a risk of return because
of his race (he is black) and his sexual orientation. He also alleged that he
faces risks of persecution by reason of imputed politician opinion because he
refused to re-enter Cuba, that he no longer has his passport (that the dance troupe
manager refused to give it back to him) and that he overstayed his exit visa,
with the result that he does not have the travel documents required to re‑enter
Cuba without suffering serious consequences.
[3]
The
Refugee Protection Division of the Immigration and Refugee Board (Board) analyzed
the applicant’s claim for protection pursuant to section 96 and subsection
97(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA) and rejected it. The applicant is seeking judicial review of that
decision.
[4]
For
the following reasons, the application is dismissed.
I. Board’s decision
[5]
The
applicant alleged that he was the subject of discrimination based on his race.
[6]
He
first described an incident where he was unable to be admitted into a
specialized music school when he was nine years old because his spot, and those
of two other black Cubans, was purportedly given to military children in
exchange for money. The Board found that the evidence did not establish that
that incident was related to the applicant’s race, but rather to corruption.
[7]
The
applicant also stated that he was the subject of identity checks by the police
on several occasions. The Board acknowledged that those checks could have been
motivated, in part, by racial considerations, but it found that the evidence
did not demonstrate that the applicant suffered any serious hardship as a
result of those incidents or that he was the victim of discrimination amounting
to persecution.
[8]
The
applicant also testified as to the discrimination he was the victim of by
reason of his homosexuality. He indicated that he and a group of friends, most
of whom were homosexuals and transvestites, were, on a few occasions, evicted
from a public park by police on the pretext of preventing prostitution. The
Board did not view such incidents as persecution, that is, a serious infringement
of a fundamental right, or repeated discrimination amounting to persecution.
[9]
The
Board also noted that the applicant alleged that he fears persecution by reason
of political opinion because he does not like Cuba’s political and economic system.
The Board did not accept this allegation and, furthermore, noted that the
applicant had stated that [translation]
“he was not a politician” and had never expressed political views.
[10]
The
Board also considered the fear of return based on the expiry of the applicant’s
exit visa. The Board noted, on this point, that counsel for the applicant had
submitted documentary evidence in support of that allegation after the hearing.
The Board found that the evidence submitted did not demonstrate, on a balance
of probabilities, a risk of return under subsection 97(1) of the IRPA. The
Board noted that the documentary evidence indicated that citizens must be
properly documented when attempting return to the island, but that nothing in
the evidence or in the testimony of the applicant indicated that he could not obtain
the documents required to return to Cuba, or what consequences he might face if
he were to return despite the expiry of his exit visa.
II. Standard of
review
[11]
It
is well established that the issue of the existence of a risk of persecution or
exposure to a risk to life or to a risk of cruel and unusual treatment or
punishment in the event of return to the country of origin is a question of
mixed fact and law reviewable on the standard of reasonableness (Sagharichi
v Canada (Minister of Employment and Immigration) (1993), 42 ACWS
(3d) 494, 182 NR 398 (CA) (Sagharichi); Liang v Canada (Minister
of Citizenship and Immigration), 2008 FC 450 at paragraphs 16 and 17,
166 ACWS (3d) 950 (Liang); Tetik v Canada (Minister of Citizenship
and Immigration), 2009 FC 1240 at paragraph 25, 86 Imm LR (3d) 154). The Court must not
substitute its own assessment of the evidence and the circumstances of the
matter for that of the Board. The Court’s analysis must focus on justification
and transparency within the Board’s decision-making process and on whether the
decision falls within a range of “possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190).
III. Analysis
[12]
The
applicant argues that the Board improperly assessed the evidence and that it
erred by finding that he was not a victim of persecution or discrimination
amounting to persecution. The applicant also contends that the Board erred by
failing to consider the cumulative effect of the incidents and the treatment he
was subjected to. In his opinion, the Board analyzed the incidents he mentioned
in isolation rather than from a global and cumulative perspective.
[13]
The
applicant also criticizes the Board for not recognizing that, because his exit
visa expired and because he refused to re-enter the country, he would be
considered a political opponent and would be subject to imprisonment. With
respect to the evidence on prison conditions in Cuba, the Board had to consider
whether the applicant would face excessive punishment. The applicant relies on Alfaro
v Canada (Minister of Citizenship and Immigration), 2011 FC 912, 1 Imm LR
(4th) 57 (Alfaro).
[14]
With
respect, I consider the Board’s findings reasonable in respect of the evidence
submitted by the applicant.
[15]
The
concept of persecution is not defined in the IRPA. In Canada (Attorney
General) v Ward, [1993] 2 SCR 689 at paragraph 63 (available
on CanLII), the Supreme Court defined the concept of persecution as a
“sustained or systemic violation of basic human rights demonstrative of a
failure of state protection.” In order to constitute persecution, the
treatments in question must be serious and repetitive or systematic. In Chan
v Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at paragraph
71 (available on CanLII), the Supreme Court further discussed the concept of
persecution and stated the following: “[t]he essential question is whether the
persecution alleged by the claimant threatens his or her basic human rights in
a fundamental way.” There is therefore a need to consider whether one of the
applicant’s basic rights was violated and then verify whether the violation was
repetitive or systematic.
[16]
In
this case, I consider the findings drawn by the Board from the evidence to be reasonable.
In my opinion, the incidents mentioned by the applicant, whether in isolation or
in combination, do not amount to persecution or discriminatory treatment amounting
to persecution. Those incidents did not threaten the applicant’s basic rights
in a fundamental way and did not have the repetitive or systematic nature
required to constitute persecution.
[17]
The
Federal Court of Appeal in Sagharichi, above, explained the difficulty
in drawing the line between the concepts of discrimination and harassment:
It is true that the
dividing line between persecution and discrimination or harassment is difficult
to establish, the more so since, in the refugee law context, it has been found
that discrimination may very well be seen as amounting to persecution. It is
true also that the identification of persecution behind incidents of
discrimination or harassment is not purely a question of fact but a mixed
question of law and fact, legal concepts being involved. It remains, however,
that, in all cases, it is for the Board to draw the conclusion in a particular
factual context by proceeding with a careful analysis of the evidence adduced
and a proper balancing of the various elements contained therein, and the
intervention of this Court is not warranted unless the conclusion reached
appears to be capricious or unreasonable.
[18]
The
Board’s analysis was sufficiently thorough to determine that it considered all
of the incidents reported by the applicant and it was reasonable to find that
those incidents did not amount to persecution.
[19]
The
applicant maintains that the Board failed to analyze whether he would be at
risk of persecution or would face a risk to his life or a risk of cruel and
unusual treatment or punishment because he overstayed his exit visa and that he
would face imprisonment upon his return.
[20]
In
Valentin v Canada (Minister of Employment and Immigration) (1991),
[1991] 3 FC 390 (available on QL) (CA), the Federal Court of Appeal found that
a person’s fear of a criminal sanction for exiting his or her country illegally
or overstaying the stay authorized by his or her exit visa is not, in itself, a
reasonable basis for fear of persecution. Justice Marceau stated the following
at paragraphs 8 and 9 of the decision:
8 I will say, first, that while in
humanitarian terms I am very much inclined to sympathize with the idea of
granting refugee status to everyone who faces criminal sanctions such as those
imposed by section 109 of the Czech Criminal Code, in practical and legal terms
the idea seems to me to be illogical and without any rational basis. Neither
the international Convention nor our Act, which is based on it, as I understand
it, had in mind the protection of people who, having been subjected to no
persecution to date, themselves created a cause to fear persecution by freely,
of their own accord and with no reason, making themselves liable to punishment
for violating a criminal law of general application. I would add, with due
respect for the very widely held contrary opinion, that the idea does not
appear to me even to be supported by the fact that the transgression was
motivated by some dissatisfaction of a political nature (on this point, see,
inter alia. Goodwin-Gill, op. cit., p. 32 et seq.: James C. Hathaway, The Law
of Refugee Status, p. 40 et seq.), because it seems to me, first, that an
isolated sentence can only in very exceptional cases satisfy the element of
repetition and relentlessness found at the heart of persecution (cf. Rajudeen
v. M.E.I.. 55 N.R. 129), but particularly because the direct relationship
that is required between the sentence incurred and imposed and the offender's
political opinion does not exist.
9 In my opinion, a provision
such as section 109 of the Czech Criminal Code can have a determining effect on
the granting of refugee status only In an appropriate context. This will
occur in cases where the provision, either in itself or in the manner in which
it is applied, is likely to add to the series of discriminatory measures to
which a claimant has been subjected for a reason provided in the Convention, so
that persecution may be found in the general way in which he is treated by his
country. . . .
[Emphasis added.]
[21]
These
principles have been applied by the Court repeatedly (Donboli v Canada (Minister
of Citizenship and Immigration), 2003 FC 883, 124 ACWS (3d) 1126 (Dunboli);
Galvez v Canada (Minister of Citizenship and Immigration), 2004 FC 1690,
135 ACWS (3d) 912; Zandi v Canada (Minister of Citizenship and Immigration),
2004 FC 411, 129 ACWS (3d) 1187, Perez v Canada (Minister of Citizenship and
Immigration), 2010 FC 833 (available on CanLII) (Perez); Rosales
v Canada (Minister of Citizenship and Immigration), 2012 FC 323 (available on
QL)).
[22]
In
Donboli, above, Justice Dawson, now of the Federal Court of
Appeal, indicated that, in some circumstances, it was necessary to further analyze
and examine whether punishment for an illegal exit from a country could
constitute a reasonable basis for a fear of persecution. She stated the
following:
4 In Valentin v. Canada (Minister
of Employment and Immigration), [1991] 3 F.C. 390 the Federal Court of
Appeal held that punishment for an illegal exit from a country is not in itself
a basis for a well-founded fear of persecution, when the punishment arises out
of a law of general application. However, where a proper evidentiary basis
exists it is necessary to consider whether excessive or extra-judicial
punishment for an illegal exit could constitute a reasonable basis for a
well-founded fear of persecution. See: Castaneda v. Canada (Minister of
Employment and Immigration) (1993), 69 F.T.R. 133 (T.D.); Moslim v.
Canada (Secretary of State), [1994] F.C.J. No. 184 (T.D.).
[23]
Justice
Rennie applied these principles in Alfaro, above. He found that the
circumstances of the case required that the Board proceed with a prospective
analysis of the problems that would await the applicant upon his return to Cuba
to determine whether he would face excessive punishment. It is important to
note that, in that case, several elements and circumstances that occurred
before the applicant’s resident permit expired appear to indicate that the
applicant would clearly be perceived as a political opponent and that he would
have serious difficulty when he returned to Cuba.
[24]
The
situation in this case is completely different and is more akin to the
circumstances in Perez, above. In that case, the applicant raised, among
other things, that she would suffer persecution and would be imprisoned upon
her return to Cuba for overstaying the authorized stay period. That applicant
based her claims on the same documentary evidence as the applicant submitted in
this case and, such as the present, the female applicant did not try to renew
her exit visa. Justice Snider stated the following:
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. [Emphasis added.]
[25]
Those
principles clearly can be transposed to this case. First, the applicant did not
try to renew his exit visa. We therefore do not know if he would be able to
regularize his situation and obtain adequate travel documents. Furthermore, the
evidence does not make it possible to assess, short of speculation, the
possible consequences for the applicant if he were to return to Cuba without
valid travel documents. Nothing in the evidence makes it possible to assess how
the law is applied and it is therefore impossible to determine whether the
applicant actually risks being accused, convicted and imprisoned. Finally,
contrary to the facts in Alfaro, the applicant did not experience any
problems with the Cuban authorities that would suggest that he would be
mistreated upon his return. The dance troupe manager’s refusal to give the
applicant back his passport is insufficient on this point. The applicant failed
to demonstrate a personalized risk.
[26]
For
all of these reasons, I am of the opinion that the Board’s findings are
reasonable and that there is no basis for the Court to intervene.
[27]
Neither
party proposed a question for certification and there is no question for
certification arising.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that
the application for judicial review is dismissed. No
question is certified.
“Marie-Josée
Bédard”
Certified
true translation
Janine
Anderson, Translator
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