Date: 20090304
Docket: IMM-2072-08
Citation: 2009 FC 229
Ottawa, Ontario, March 4, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
EULER
PERNAS HERNANDEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is the judicial review of a decision by the IRB to deny the Applicant’s claim
for refugee protection. The only substantive issue in this judicial review is
the legal effect of the Immigration and Refugee Board’s (IRB) failure to
address whether the Applicant paid a bribe to leave Cuba.
II. BACKGROUND
[2]
The
Applicant, a Cuban national, claimed that he feared persecution because he had
accumulated wealth through the tips he received while working at a hotel.
[3]
In
February 2006, he was fired from his hotel job because of improper use of a
computer in that he was searching for foreign work.
[4]
The
Applicant, while completing the paperwork to take up a new job in Spain, was invited
to visit a friend in Germany. He claims that he had
to bribe an official to obtain his security clearance which, along with an exit
visa, was necessary to leave Cuba.
[5]
While
in Germany the
Applicant obtained a Canadian visitor’s visa. He claimed that he decided to
seek refugee status while on the flight to Cuba with a
layover in Canada.
[6]
The
IRB found that the Applicant had travelled with a valid exit visa and had now
overstayed his visa by remaining in Canada. The IRB relied on the
decision in Valentin v. Canada (Minister of Employment and Immigration),
[1991] 3 F.C. 390 (F.C.A.), wherein the Court of Appeal held that persons who
overstay an exit visa, thus committing an offence in their home country, cannot
make a refugee claim by having created a fear of persecution.
[7]
The
IRB dismissed the other aspects of the refugee claim, which were based on
alleged political activities, noting that the Applicant had been able to secure
lucrative employment despite his alleged political activities.
III. ANALYSIS
[8]
This
judicial review is largely fact driven; however the alleged error is the
failure to consider a material fact, or alternatively the inadequate
consideration thereof. In the post-Dunsmuir era (Dunsmuir v. New
Brunswick,
2008 SCC 9), the first error is one of law and is subject to the correctness
standard of review. The alternative is a matter of mixed law and fact with the
contextual factors indicating a wide range of reasonable alternatives. For
purposes of alternate determination of this judicial review, the application of
either test leads to the same result.
[9]
The
IRB misapplied Valentin, above, in this case. That decision bars
self-induced refugee status. It starts from the premise that an applicant has a
valid exit visa. It then bars the applicant from overstaying the visa and
relying on the self-created overstay as a grounds of persecution.
[10]
In
the present case the IRB did not consider the validity of the exit visa and the
circumstances under which it was obtained. One cannot obtain an exit visa for Cuba without a
security clearance. The Applicant claimed that he had to bribe an official to
obtain the clearance. If true, that act calls the validity of the exit visa
into question.
[11]
If
the Applicant was required to bribe an official for the security clearance, it
begs the question as to the reason he had to do so.
[12]
The
IRB stated “there is no issue in this claim of an illegal exit from Cuba”. This
statement must be juxtaposed to the Applicant’s PIF narrative where he raises
that issue. It is an issue which goes to the core of the refugee claim.
[13]
Therefore,
the IRB either failed to consider critical evidence going to the core of the
refugee claim or gave inadequate consideration of that evidence and reached an
unreasonable conclusion on this material point.
IV. CONCLUSION
[14]
This
judicial review will be granted, the IRB’s decision quashed, and the refugee
claim remitted for a new determination by a differently constituted panel.
There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the Immigration and Refugee Board’s
decision is quashed, and the refugee claim is to be remitted for a new
determination by a differently constituted panel.
“Michael
L. Phelan”
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