Date: 20090710
Docket: IMM-162-09
Citation: 2009 FC 718
Toronto, Ontario, July 10, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MAYELIN
ABREU BELEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Mayelin Abreu Belen (the “Applicant”) seeks judicial review of the decision of
the Immigration and Refugee Board, Refugee Protection Division (the “Board”)
dated September 23, 2008. In its decision, the Board determined that the
Applicant was not a Convention refugee nor a person in need of protection
within the meaning of sections 96 and 97, respectively, of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).
[2]
The
Applicant is a citizen of Cuba. Trained as a lawyer, she worked as a
judge in Cuba from 1993
until 1998 when she went on a leave of absence for health reasons. She was
relieved of her duties as a judge in 2000.
[3]
In
September 2000, the Applicant married a Mexican citizen as a means of leaving Cuba. This
marriage of convenience lasted until 2004 when the Applicant divorced her
husband. Beginning in 2003, she began co-habiting with another Mexican
citizen.
[4]
The
Applicant returned to Cuba in 2001 in order to obtain a Permit to
Reside Abroad (“PRE”). She returned again in January 2007 to visit her mother
who was ill. The Applicant experienced no difficulties in leaving Cuba in 2001 and
2007.
[5]
In
March 2007, the Applicant travelled to Canada with her
partner, on vacation. She claims that he decided to end their relationship
after arriving in Canada. She remained in Canada and several
months later, she claimed refugee protection. She asserted a claim that she
would be at risk in Cuba due to her political opinion and the fact that
she had married a foreigner.
[6]
The
Board dismissed the Applicant’s fear of persecution at the hands of the Cuban
government for having overstayed her exit visa, concluding that she had
failed to establish a valid sur place ground for her claim. It also
dismissed her claim of fear of persecution by a former supervisor or the
authorities on the grounds that in light of the passage of time, neither the
supervisor nor the authorities would have any further interest in the Applicant.
The Board considered these issues within its section 96 analysis.
[7]
In
addressing the Applicant’s claim for protection pursuant to section 97 of the
Act, the Board concluded that the Applicant had failed to adduce sufficient
objective evidence to show that she could be personally subjected to a risk to
life or a risk of cruel or unusual punishment or to a danger of torture if
returned to Cuba.
[8]
Following
the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
decisions of administrative decision-makers are subject to review upon one of
two standards, that is correctness or reasonableness. Prior jurisprudence may
assist in determining the appropriate standard of review, having regard to the
nature of the question in issue; see Dunsmuir at para. 54.
[9]
In
this case, the question in issue requires an assessment of evidence in the
context of the statutory scheme of the Act. It is fact-intensive and formerly
such a question was reviewable on the standard of patent unreasonableness; Moreb
v. Canada (Minister of
Citizenship and Immigration) (2005), 48 Imm. L.R. (3d) 37 at para. 11.
Subsequent to the decision in Dunsmuir, that standard has been
subsumed in the standard of reasonableness; see Dunsmuir at para. 45.
[10]
I
am satisfied that the Board committed a reviewable error by failing to deal
with the Applicant’s claim that as a Cuban woman who had married a foreigner,
she would be at risk of persecution in Cuba. The Board clearly ignored or
misunderstood this part of the Applicant’s claim and ignored the objective
evidence that was presented in support. On the basis of the decision in Meneses
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 179 at para. 22, when the Board
ignores relevant evidence central to an applicant’s claim, which contradicts
the Board’s findings, an error is made. Such an error justifies judicial
intervention.
[11]
In
light of this conclusion, it is not necessary for me to comment upon the other
arguments raised by the Applicant.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is allowed, the decision of the Board is
quashed and the matter is remitted to a differently constituted Board for
re-determination. There is no question for certification arising.
“E. Heneghan”
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