Date: 20110310
Docket: IMM-1706-10
Citation: 2011 FC 289
Ottawa, Ontario,
March 10, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MARIA DEL CARMEN MARRERO NODARSE (A.K.A. MARIA DEL CARME
MARRERO NODARSE)
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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]
This
is an application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated February 18,
2010, wherein the Applicant was determined to be neither convention refugee nor
a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S. 2001, c. 27 [IRPA]. The Board
determined that the Applicant did not possess a well-founded fear of
persecution.
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Maria Del Carmen Marrero Nodarse, is a citizen of Cuba. She seeks refugee
protection in Canada alleging a fear of
persecution on the basis of her political opinion.
[4]
The
Applicant occupied the position of commercial specialist. Her husband worked
for the Ministry of Foreign Investment, and the Applicant accompanied him when
he was posted abroad in Spain and in Canada.
[5]
The
Applicant claims that she first became the subject of interest by the Committee
for the Defence of the Revolution (CDR) following her son’s defection to Canada in 2002. The CDR
questioned the Applicant and began to monitor her home.
[6]
This,
however, was not the first time the Applicant’s family allegedly attracted
unwanted attention from the Cuban authorities. The Applicant’s husband was
questioned after their daughter emigrated to Canada to join her Canadian husband in 2000. The
Applicant’s husband successfully assuaged any concerns the government had
regarding his reliability. However, in 2001, the Applicant began to express
unwelcome opinions during meetings at her workplace. These included stating
that Cuba’s centralized economy
was stagnant and overly controlled by the government. The Applicant attributes
her name being removed from a list of possible acting managers to these
comments. As such, she decided to retire before she got into any more trouble
with the communist authorities.
[7]
Following
her son’s defection in 2003 the CDR asked the now-retired Applicant to occupy a
“surveillance” position in the CDR executive. The Applicant refused and
reduced her participation in CDR activities. In the Applicant’s account of
this period, the CDR attempted to intimidate the Applicant by threatening to
affect her ability to obtain exit permits to visit her children in Canada. The CDR also accused
the Applicant of receiving packages containing banned items from abroad. The
packages in fact contained medicine sent by the Applicant’s children in Canada and were delivered by their
friends. The same year, the Applicant attempted to obtain another job. After
her references were checked the Applicant was rejected and she stated that she
came to realize that she’d never be able to find another job.
[8]
Nevertheless,
the Applicant traveled to Canada in April 2003 and returned in July 2003. She made the same
trip again in June 2005 and returned to Cuba in September 2005.
[9]
The
Applicant explained that as a result of her political beliefs, she and her
husband decided to separate as he believed her attitude was jeopardizing his
career with the government.
[10]
The
Applicant alleges that her situation worsened in July 2006 as the political
climate in Cuba became increasingly
repressive due to Fidel Castro falling ill. The Applicant claims that one of
her friends showed her a paper that had a photograph of the Applicant and
described her as a person who needed to be kept under surveillance. Despite
this alleged surveillance, the Applicant was able to travel to Canada in July
2006 and return to Cuba in September 2006.
[11]
The
Applicant’s trouble with the CDR reached its most critical stage in June 2007
when the Applicant entertained friends of her daughter. The CDR made a report
to the Office of the Social Workers accusing the Applicant of renting her house
to foreigners. Nonetheless, the Applicant successfully obtained a visitor’s
visa and an exit permit in October 2007 and travelled to Canada to visit her children.
[12]
The
Applicant claims she did not intend to stay in Canada, however, following Raul Castro’s
election in February 2008 the Applicant felt that her situation in Cuba had become even more
precarious as the authorities increased the use of the “dangerousness
provision” against persons not considered politically reliable. The Applicant
feared she would be targeted and so made a claim for refugee status on March 3,
2008.
B. Impugned
Decision
[13]
The
Board found that the Applicant’s re-availment to Cuba three times during the 2003-2006 period was
inconsistent with a well-founded fear of persecution.
[14]
The
Applicant claimed to have been viewed with suspicion by the government due to
both of her children having left Cuba, threatened by the President of the CDR,
denied employment, named as politically unreliable and put under surveillance
by the CDR and yet she explained that she did not claim refugee protection
during any of her three visits to Canada because at that point she merely felt
harassed by the CDR and not threatened.
[15]
The
Board found this explanation to be implausible and contradicted by the
documentary evidence. The Board concluded, on a balance of probabilities, that
the Applicant was not negatively viewed by the government and that she failed
to provide a reasonable explanation for freely returning to Cuba on three occasions.
[16]
The
Board also found it implausible that the Applicant would have been surprised by
the results of the February 2008 “elections” which kept Raul Castro in power
and thus, the Board found that the Applicant failed to reasonably explain her
four month delay in claiming refugee protection in Canada. This factor further
undermined the Applicant’s credibility and her claim of subjective fear.
[17]
The
Board then completed a section 97 risk of harm analysis. The Applicant, having
been outside of Cuba for more than the permitted eleven months, would be
subject to provisions of the Penal Code of Cuba and could potentially face
punishment upon her return to Cuba.
[18]
The
Board determined that the Applicant had, in effect, created an artificial
situation in order to claim refugee status. The Board took the view that since
any punishment would be the result of a law of general application, it did not
constitute a risk of harm and that the Applicant failed to establish, based on
a balance of probabilities, that she would personally be subjected to serious
harm.
II. Issues
[19]
This
application raises the following issues:
(a) Did
the Board ignore or misconstrue evidence in coming to the conclusion that the
Applicant lacked credibility?
(b) Did
the Board err in its section 97 analysis by finding that potential punishment
arising from the application of provisions of the Cuban Penal Code did not
constitute a risk of harm?
III. Standard
of Review
[20]
It
is well-established that decisions of the Board as to credibility and
implausibility are factual in nature and are therefore owed a significant
amount of deference. The appropriate standard of review is a standard of
reasonableness (Dong v Canada (Minister of Citizenship and Immigration),
2010 FC 575 at para 17; Lawal v Canada (Minister of Citizenship and
Immigration), 2010 FC 558 at para 11; Aguebor v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315, 42 ACWS (3d) 886 (FCA)
at para 4). Similarly, the weight assigned to evidence and the interpretation
and assessment of evidence are all reviewable on a standard of reasonableness (N.O.O.
v Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at
para 38).
[21]
As
set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
[22]
The
correctness standard applies to the second issue. The Court will ask whether
or not the Board was correct in finding that imprisonment for violating Cuba’s
exit laws does not amount to persecution (Perez v Canada (Minister of
Citizenship and Immigration), 2010 FC 833 at para 10).
IV. Argument
and Analysis
A. The
Board’s Credibility Analysis was Reasonable
[23]
The
Board determined that the Applicant lacked a subjective fear of persecution.
The Board came to this conclusion after considering that the Applicant had
freely returned to Cuba three times after she
had already allegedly attracted the attention of the CDR and delayed making a
claim when she arrived in Canada in 2007, all without a reasonable explanation. The Board
found the Applicant’s explanations to be implausible and inconsistent with the
documentary evidence. The cumulative effect of the re-availment, delay in
claiming and plausibility findings was to undermine the Applicant’s
credibility.
[24]
The
Applicant submits that in coming to these conclusions the Board misconstrued
the evidence.
(1) Profile
of the Applicant
[25]
The
Applicant submits that the Board misconstrued and selectively used evidence
resulting in a flawed profile of the Applicant. It is the Applicant’s belief
that had the Board properly understood that the Applicant was “high profile” -
a privileged Cuban with significant past travel experience who was considered
politically trustworthy (by the Immigration authorities) given her previous
position and her husband’s current position - they would have accepted her
explanation as to why she had no difficulty obtaining an exit permit in 2007.
[26]
The
Respondent argues that the Board did not fail to appreciate the Applicant’s
profile when it decided that it was implausible that her ability to travel
would not be impeded. What the Board found implausible was the Applicant’s own
testimony that she returned to Cuba
three times between 2003 and 2006 because she did not feel threatened, even
though according to her testimony she was under surveillance by the CDR. The
Board considered it implausible that a person with the profile of “suspected of
being politically unreliable” would easily obtain an exit visa if she were
truly of interest to the government.
[27]
I
find the Applicant’s argument unconvincing. The Board is entitled to impugn
the credibility of claimants as long as clear and detailed reasons are provided,
as in the present case. The Board’s explanation “must be based on rationality
and common sense and must be consistent with the documentary evidence” (Malveda
v Canada (Minister of
Citizenship and Immigration) 2008 FC 447, 166 ACWS (3d) 337 at para 24).
[28]
The
Board cited documentary evidence indicating that dissidents are routinely
denied exit permits. When the Board questioned the Applicant further on this
point, she could only explain that she did not know how immigration works, but
based her opinion that the immigration office only does a background check on
an initial application for an exit permit on comments made by friends. This is
only speculation, unsupported by documentary evidence.
[29]
The
Board ultimately concluded that it was implausible that the Applicant was being
persecuted for her political beliefs by the CDR and the Office of the Social
Work as she claimed but was not prevented from leaving the country. Based on
the evidence before the Board, I find this to be a reasonable conclusion that
was open to the Board.
[30]
Despite
the Applicant’s contention that the Board cited documentary evidence relating
to the “dangerousness” provision to support its finding that dissidents are not
treated lightly, I cannot agree that the Board has failed to cite documentary
evidence that supports its position. The statement that dissidents are
routinely denied exit permits came from a U.S. Department of State Report and
did not relate specifically to the dangerousness provision. That report
further states that the government frequently denies exit permits for several
years to people whose relatives have illegally migrated. The Board had ample
documentary evidence to support its position, none of which was convincingly
contradicted by the Applicant.
(2) Re-availment
[31]
The
Board concluded that the Applicant failed to provide a reasonable explanation
for returning to Cuba from trips to Canada in 2003, 2005 and 2006. The Applicant submits
that in coming to the conclusion the Board failed to appreciate the profile of
the Applicant. Because the Applicant was a more privileged member of the Cuban
regime, she was not as easily intimidated by the CDR and therefore she only
began to feel threatened after the February 2008 elections.
[32]
With
respect, this argument does not point to the existence of any reviewable error
made by the Board. It is clear from the transcript that the Board was privy to
testimony regarding the social position of the Applicant. Nevertheless,
ultimately the Board was convinced that the Applicant was either never a person
of interest to the CDR, or that the Applicant overstated that interest.
[33]
Furthermore,
as the Respondent argues, it is the Applicant’s own allegation that she began
to have problems with the Cuban government in 2001, and those problems
continued and escalated until she left for Canada in 2007. Re-availment to the country of
persecution has been held by this court to be incompatible with a genuine fear
of persecution (Hevia v. Canada (Minister of Citizenship and Immigration), 2010 FC 472). I agree
with the Respondent that the Board’s finding on this point is entirely
reasonable.
[34]
The
Applicant further contends that the Board selectively referred to documentary
evidence to support its conclusions. The Applicant is, in effect, asking this
Court to re-weigh evidence, to prefer one paragraph in the documentary evidence
over another one, and come to a contrary finding regarding the Applicant’s
credibility. This is not the Federal Court’s role on judicial review.
(3) Delay
[35]
The
Board rejected the Applicant’s explanation for her delay in claiming in Canada. The Applicant again
submits that the Board selectively quoted the Applicant’s evidence. In my
view, any selectivity that the Board applied to quoting the Applicant’s
testimony was with the purpose of writing a summary of her position as opposed
to providing a verbatim transcript. This has in no way affected the
reasonableness of the Board’s conclusion regarding the Applicant’s credibility.
B. The Board’s
Finding that the Applicant was not a Person in Need of Protection was Correct
[36]
The
Applicant claimed to fear persecution by the authorities in Cuba should she return, for
overstaying her exit permit. The Applicant also argued that she might be
subject to imprisonment under the “dangerousness” provision in the Cuban penal
code.
[37]
To
travel to Canada in October 2007, the
Applicant obtained an exit permit, valid initially for three months. The
Applicant made no efforts to extend her permit, and knowingly allowed it to
expire.
[38]
The
Board found that the Applicant had artificially created a circumstance in which
she might be punished for violating a Cuban law of general application. As
there was no evidence that any prosecution the Applicant would face would not
be neutral, the Board did not find that any potential prosecution constituted a
risk of harm. This finding was consistent with the Federal Court’s finding in Valentin
v Canada (Minister of Employment
and Immigration),
[1991] 3 FC 390 (CA), [1991] FCJ No 554 (QL).
[39]
The
Applicant submits that the Board failed to consider whether, given the profile
of the Applicant, the Cuban government would use the exit laws as a means to
punish the Applicant for her perceived political opinion. Furthermore, the
Applicant submits that the Board failed to consider that her husband allegedly
reported her refugee claim to the Cuban government.
[40]
The
Respondent submits that the Board’s decision is aligned with the jurisprudence
of this Court which holds that a refugee claimant who fails to renew her valid
Cuban exit visa cannot rely on the possibility of punishment under Cuba’s
criminal laws as grounds for protection under section 96 or section 97 of
IRPA (Valentin, above; Perez, above).
[41]
Valentin, above, bars
self-induced refugee status. In Zaidi v Canada (Minister of
Citizenship and Immigration) (2004), 35 Imm LR (3d) 273 (FC) Justice Michael
Kelen paraphrased the Federal Court of Appeal’s holding in Valentin,
writing at para 10:
[…]
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. As worthy as the applicant may be for Canadian immigrant status, the
Refugee Board, and this Court, do not have the legal jurisdiction to grant
defectors legal status.
[42]
The
Applicant did not provide any evidence, beyond mere speculation, that she would
be subject to harsh and unusual treatment upon her return to Cuba. The documentary
evidence provides that would-be legal migrants face harassment and intimidation
by the government. The Applicant seeks to logically extend this information to
posit that it is reasonable to conclude that there would be sanctions for those
who seek to emigrate illegally by overstaying their exit permits.
[43]
The
Applicant cannot point to any documentary evidence that mirrors this exercise
in theory. The documentary evidence, however, does provide that Cubans who
overstay their exit permits can apply for a re-entry permit to legally return
to Cuba. Without any actual
evidence to support the Applicant’s assertion, I see no reason to move away
from the previous holdings of this Court. In Perez, above, Justice
Judith Snider held that without sufficient evidence to find that the
Applicant’s fear of imprisonment was well-founded the Board was correct in
concluding that the risk of imprisonment in Cuba upon the Applicant’s return did not amount to
persecution under section 96, or risk of cruel and unusual treatment under section
97. Similarly, in the present case the Board was correct in concluding that
prosecution of the Applicant pursuant to the Cuban penal code does not
constitute a risk of harm.
V. Conclusion
[44]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
[45]
No
question to be certified was proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is dismissed.
“ D. G. Near ”
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