Date: 20110217
Docket: IMM-1892-10
Citation: 2011 FC 194
Ottawa, Ontario, February 17,
2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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ISIDRO BATISTA MARTINEZ PANEQUE AND SANDRA NIEVES ESTOPIAN
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Applicants
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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 a decision of a member of the
Immigration and Refugee Board (the “Board”) pursuant to section 72(1) of the
Immigration and Refugee Protection Act, SC 2001 c 27 (“IRPA”) by Isidro Batista
Martinez Paneque and Sandra Nieves Estopian (the “Applicants”).
[2]
In
a decision dated March 22, 2010, the Board determined that the Applicants were
neither Convention refugees nor persons in need of protection pursuant to
sections 96 and 97, paragraph 1 of the IRPA. The Applicants claimed fear of
persecution by the government of Cuba because of an incident
which occurred in December of 2007, and because they have overstayed their
Cuban exit visas.
[3]
The
Applicants are seeking a judicial review of this decision.
I. The Impugned decision
[4]
The
Applicants are citizens of Cuba. The male claimant has been a musician in Cuba since 1972.
In April 2007, the Applicants came to Canada for several months to
visit their daughter. During the visit, the male claimant tried to arrange a
concert tour for his Cuban band in Canada. Unfortunately, his
band was unable to get permission to leave Cuba for the
tour. Upon returning to Cuba, the male applicant was unable to find
work for his band.
[5]
In
December 2007, the male claimant approached the manager of the Music Center, a
government agency responsible for finding work and paying musicians. Angry
because the manager of the center had failed to find work for his band and
could not provide a satisfactory explanation for refusing his proposed tour to Canada, the male
claimant accused the manager and all government officials of being liars and
not doing their jobs. He also questioned the kind of socialism being practiced
in Cuba. The manager
threatened to report him to the authorities for his comments and assured him
that he would not work as a musician and would go to jail.
[6]
The
male claimant returned home and recounted the incident to his wife, and they
decided to leave the country. Six weeks later, on February 12, 2008, the
claimants left Cuba on the multiple entry visas to Canada that they
already possessed. They requested refugee protection a few weeks later. The
male claimant fears that, if he returns to Cuba, he will be
jailed for his comments against the government official. The claimants also
fear that they will be jailed or persecuted because they have remained outside
of Cuba beyond the
legally permitted time.
[7]
The
hearing was held on February 23, 2010, and the Board's decision was issued on
March 22, 2010.
[8]
The
first part of the Board’s section 96 analysis focused on the lack of an
objective basis for the claimant's fear of persecution flowing from the
comments he had made to the government officials.
[9]
Whilst
the Board found that there are laws in place, as well as some evidence that
suggests that the male applicant could be persecuted for having criticized the
government, it did not believe that this would occur in this case since the
male applicant remained in his home in Cuba for about six (6) weeks after the
argument without any signs of persecution. Furthermore, the Board found that he
successfully obtained permission from the Music Centre to leave Cuba. If the
manager of the Music Centre truly intended to report the claimant, he would
have done so during those six (6) weeks, or at the very least would have
withheld permission for him to leave the country.
[10]
The
Board also discussed how Cuba often denies exit permits to those whose
relatives have emigrated illegally (which the claimant's daughter did years
ago). The Board noted that the Applicants had suffered no ill effects as a
result of their daughter's departure and have, in fact, been permitted to leave
the country twice since their daughter’s illegal emigration.
[11]
Their
other daughter remained in Cuba at their residence and has not encountered
any difficulties further to her parents’ departure. She was not contacted
regarding her father's criticism of the government, but did receive a call from
the immigration authorities, requesting that she remove her parents from the
Consumer registry, failing which they would not be able to return to Cuba.
[12]
The
Board also noted that the female claimant faces no problems other than those
faced by her husband.
[13]
Therefore,
the Board found on the balance of probabilities that there was not a serious
possibility that the claimants would face persecution.
[14]
The
second part of the Board’s section 96 analysis discussed the possibility of the
claimants being punished for having remained outside of Cuba longer than the
permitted time, as they testified would occur when they returned to Cuba.
[15]
The
Board found no persuasive evidence that the claimants in particular would be
punished for having stayed in Canada longer than acceptable, other than the
Cuban law of general application which, in fact, does punish those who remain
too long outside of the country.
[16]
The
Board reviewed documentary evidence suggesting that emigrants who stay too long
away from Cuba will lose
their residency rights if they fail to obtain permission to return to Cuba before doing
so. Unless an émigré has obtained a permit to reside outside Cuba, he cannot
return there without a special re-entry permit.
[17]
At
the same time, however, the Board noted that article 215 of Cuba's criminal
code provides that those who enter Cuba without completing the
re-entry formalities risk one (1) to three (3) years of imprisonment.
[18]
The
Board pointed out the contradiction between these rules. In short, the Board
accepted that there were consequences for returning without permission and that
the claimants would likely lose their residency rights if they did so.
[19]
Nevertheless,
the Board concluded that there must be some method for obtaining the special
permission to return to Cuba, even if the process is not transparent.
The Board found that if they were to return home without permission and be
punished, they would be punished only subject to a law of general application
which the Board characterized as criminal rather than persecutory in nature.
Hence the Board found that the claimants did not have a well-founded fear of
persecution and were not Convention refugees and their section 96 claims
failed.
[20]
The
Board then proceeded to evaluate the claimants’ section 97 claims, stating that
the determinative issue in the analysis would be whether the risk to the
claimants was a law of general application. The Board noted that section
97(1)(iii) of the IRPA provides that a person at risk is not a person in need
of protection if that risk is inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards.
[21]
The
claimants’ argument that their potential imprisonment if they were to return to
Cuba without
permission would violate international standards was rejected by the Board,
since it found that the evidence did not support such a conclusion.
[22]
The
claimants’ argument that the law preventing their return to Cuba violates
international standards was rejected by the Board since it found that the
objective evidence did not establish that they could not return to Cuba, even though
they may have to complete an administrative process in order to do so.
[23]
Finally,
it was argued that prison conditions in Cuba are so harsh
that imprisonment amounts to cruel and unusual treatment or punishment. The
Board acknowledges that prison conditions in Cuba are indeed,
harsh and unpleasant. However, it found there was no persuasive evidence that
those conditions violated international standards.
[24]
The
Board noted that the claimants are at risk of being punished for violating Cuba's laws of
general application and found there was no evidence or of risk of torture.
Therefore, the Board found that their section 97 claims failed.
II. Relevant legislation
[25]
The
relevant portions of the Act are as follows:
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Convention
refugee
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person
in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Définition
de « réfugié »
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
Personne
à protéger
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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III. Issues
[26]
The
Applicants identified five issues; they can be properly treated under two
separate questions:
a.
Did
the Board err in assessing the evidence before it and concluding that there was
no objective basis to the Applicant’s subjective fear?
b. Did the Board
err in finding that imprisonment for violating Cuba’s exit laws
does not amount to persecution under s. 96 of the IRPA or cruel and unusual
punishment under section 97 of the IRPA?
A. Standard of Review
[27]
The
first issue is reviewable on a reasonableness standard because the question of
objective fear is one of mixed fact and law (Dunsmuir v New Brunswick,
2008 SCC 9, at para 47), whereas the second issue is reviewable in part on a
standard of reasonableness and in part on correctness as the question relates
to the application of the correct legal test in assessing the proportionality
of exit laws. As Dunsmuir held at paragraph 50, “is also without
question that the standard of correctness must be maintained in respect of
jurisdictional and some other questions of law. This promotes just decisions
and avoids inconsistent and unauthorized application of law.” The application
of the correct legal test to the facts “is an issue of mixed fact and law that
is to be reviewed on a standard of reasonableness” (Miroslav v Canada (Minister of
Citizenship and Immigration), 2010 FC 383, at para 20.
IV. Analysis
A. First
Issue: Evidence Submitted and Objective Fear
[28]
The
Applicants submit that the Board found their fear of political persecution to
be objectively unfounded because it made an error in determining that the
manager of the Music Center, whom they allegedly feared, had granted
them permission to leave Cuba. The Applicants allege that this finding
by the Board constitutes a reviewable error because the Board misapprehended
the facts, or else disregarded or ignored their evidence. The Applicants submit
that they never stated in their testimony that they had sought permission from
the manager of the Music Center to leave Cuba. The
Applicants indicate that the confusion may have arisen from the fact that a
member of the band obtained the exit visa for the Applicants by applying to the
Cultura House, which the Board must have confused with the Music Centre.
[29]
This
factual error, they contend, was central and key to the Panel’s finding that
their fear lacked an objective basis, since the Board believed that the person
who could possibly trigger their persecution had been instrumental in obtaining
their exit visas.
[30]
They
further submit that such a failure to properly analyse the factual evidence
before it renders the Board’s decision unreasonable.
[31]
In
reply, the Respondent reminds the Court that the Applicants suffered no ill
effects during the six weeks that they remained in Cuba after the incident with
the manager of the Music Center, arguing that it
indicates that the Applicants had nothing to fear from him. The Respondent also
highlighted the fact that the Applicants were permitted to leave the country
after the incident.
[32]
With
respect to the misunderstanding as to who exactly had granted the Applicants
permission to leave the country, the Respondent explained their understanding
of the Personal Information Form (“PIF”) and the testimony. The Respondent
submitted that the person who obtained permission for the Applicants to leave
Cuba further to the incident with the manager of the Music Center was
in fact employed by the manager of the Music Center. Therefore
they submit that the Music Center was involved in the
granting of permission to leave the country. Consequently, according to the
Respondent, the Board’s decision and its conclusion that the Applicants were
not in danger of persecution was reasonable.
[33]
The
question is important because if, as determined by the Board, it was indeed the
Music Center that
granted the Applicants permission to leave Cuba after the
incident, then it was surely reasonable for the Board to find it unlikely that
its manager would trigger the persecution of the Applicants.
[34]
To
ascertain the nature of the testimony given, the Respondent referred the Court
to volume 1, page 32 of the Application Record. In reviewing the PIF, no
mention is actually made of the authority that granted permission to the
Applicants to leave Cuba. In that respect the PIF only mentions that the
Applicants took advantage of their multiple-entry visas to re-enter Canada on February
12, 2008.
[35]
In
the transcript the Applicant explains that he worked with three other musicians
in the band, which was overseen by the Music Center. The Music Center is a
government entity responsible for finding work for, and paying, the band. The
applicant mentions that there was another cultural agency called the Cultura
House that works with the Music Center and to which other
musicians belonged. While the Applicant was the administrator of the band,
another member was the musical director. The Applicant goes on to state that
the senior administrator at the Music Center with whom he had the
dispute is named Cesar Casania.
[36]
The
record shows in volume 2, page 505 that after having received their daughter’s
invitation to come to Canada the Applicants needed authorization from a
government entity called the Cultura House to obtain their exit visa. The
transcript reveals that it was the musical director of the Applicant’s band who
presented the letter of invitation to the Cultura House and obtained permission
for the Applicants to leave Cuba.
[37]
Since
the Music Center is
responsible for hiring and paying all musicians that work in Cuba, the
Respondent claims that the manager of the Music Center did play a
role in obtaining the exit visa in that it was the musical director of the
Applicant’s band who obtained permission from the Cultura House. Since he was
paid by the Music Center, he
was an employee of the Music Center and therefore there was a form of
involvement by the Music Center since it oversaw the
band.
[38]
There
is no evidence on file to indicate that the music director of the Applicant’s
band obtained the exit visa for the Applicant with the knowledge of the Music Center. Therefore
there is an error in the Board’s characterization of the facts, and its
assessment of the objective fear is undermined since it was certainly a key
element in the Board’s reasoning with respect to the absence of an objective
fear.
[39]
The
Applicants submit that this error on the part of the Board renders its decision
unreasonable as to the absence of an objective fear. This finding of fact still
has to be balanced with the Board’s other findings regarding an objective
element of the Applicants’ fear.
[40]
It
is established law that the Court will not intervene unless it is satisfied
that a Board made a palpably erroneous finding of material fact, and that the
finding was made without regard to the evidence. (Cepeda-Gutierrez v Canada (Minister of
Citizenship & Immigration), (1998) FCJ No 1425 (Trial Division).
[41]
After
review, I come to the conclusion that the Board’s error is determinative in the
circumstances since it underlies the basic tenet of the Board’s finding as to
the absence of an objective basis to the applicants’ fear of persecution. While
the Board took into consideration other elements such as the situation with
respect to the daughter living in Canada and the daughter that
remained behind in Cuba, the key element that triggered the Applicants’
decision to flee Cuba remains the dispute with the manager of the Music Center and the fear
of reprisals. The decision was therefore unreasonable because it is based on a
misinterpretation of key facts considered by the Board in coming to its
conclusion. An error of fact that undermines the Board’s decision can
constitute grounds for sending the case back for redetermination, as in Warnakulasuriya
v Canada (Minister of
Citizenship and Immigration), 2008 FC 885, at para 10, and Poologanathan
v Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 987, at para 14.
[42]
This
Court therefore finds that this error is fatal to the Board’s decision. In view
of this conclusion, this Court finds no need to decide on the merits of the
other arguments presented by the Applicants.
[43]
The
application for judicial review is allowed.
[44]
Counsel
for the Applicants reserved his opinion as to whether there was a question of
general application to certify. Respondent’s counsel did not see any question
nor does this Court. Therefore no such question will be certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is allowed. The Board’s decision dated March 10, 2010 is set aside. The
claim is returned for reconsideration.
THIS COURT’S
FURTHER JUDGMENT is that no question of general interest is certified.
"André
F.J. Scott"
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