Date: 20070423
Docket: IMM-2848-06
Citation: 2007 FC 429
Ottawa, Ontario, April 23, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
RAFAEL NARANJO-RIVERA, NAOMI
RUTH O’BRIEN,
AURORA NARANJO-RIVERA and
DANIEL NARANJO-RIVERA
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review from a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Board) rendered at Winnipeg on May 4,
2006 which dismissed the claims to refugee protection brought by the
Applicants, Rafael Naranjo-Rivera, Naomi Ruth O’Brien and Aurora
Naranjo-Rivera.
Background
[2]
The
principal Applicant, Rafael Naranjo-Rivera, is a Cuban national who has resided
in the United
States
since 1980. He was one of about 125,000 Cubans who either fled Cuba or were
exiled to the United
States
as part of the Mariana boatlift. The second Applicant, Naomi Ruth O’Brien, is
the spouse of Mr. Naranjo-Rivera. She is an American citizen. The two minor
Applicants, Aurora Naranjo-Rivera and Daniel Naranjo-Rivera, are the children
of Mr. Naranjo-Rivera and Ms. O’Brien. Aurora was born in
the United States and is an American citizen and Daniel was born in Canada and is a
Canadian citizen. Although Daniel is named as an Applicant in this proceeding,
the parties agree that, as a Canadian citizen, there is no basis to his claim
to refugee protection. In the result, when I refer to the Applicants in this
decision, I do not include Daniel.
[3]
The
Applicants came to Canada from the United States in June,
2004. Mr. Naranjo-Rivera sought protection both as a convention refugee and as
a person in need of protection against both Cuba and the United
States.
Ms. O’Brien and her daughter made similar protection claims but only against
the United
States.
[4]
Mr.
Naranjo-Rivera claimed that he had been the victim of persecution in Cuba for several years
before leaving for the United States. Before the Cuban Revolution,
his parents were apparently persons of some means. His father was also a
member of the Cuban Congress and allegedly a co-founder of the Christian
Democratic Party (CDP). All of that changed after Fidel Castro came to power.
The family assets were confiscated and Mr. Naranjo-Rivera’s father went into
hiding.
[5]
Mr.
Naranjo-Rivera alleged that the family home was searched by the authorities in
an effort to find his father. In 1963, when Mr. Naranjo-Rivera was 11 years old,
his father was arrested on political grounds and then imprisoned for eight (8)
years.
[6]
Mr.
Naranjo-Rivera claimed that, during his student years in Cuba, he formed
political views that were contrary to the prevailing communist ideology.
Apparently, he was not adverse to expressing those views from time to time and
this led to his expulsion from school. In 1972, he was drafted into the Cuban
army but, again, his outspoken nature led to his arrest and the imposition of a
prison term of five (5) years. He claimed to have been released early in 1975
under the terms of an amnesty program.
[7]
Mr.
Naranjo-Rivera then went back to school in Havana but he was
later expelled for refusing to carry out assignments that he believed had
military applications. In 1979, he said that he was arrested and interrogated
for two (2) weeks as a consequence of being involved with the organization of
opposition demonstrations in Havana. At this point, he claimed to have been
working underground for the CDP as a member of an independent cell. In 1979,
he was fired from his official job, arrested and detained (along with many
others) without charges. In 1980, he was released from custody but forced to
leave Cuba for the United States with thousands of other political
dissidents.
[8]
Upon
arrival in the United States, Mr. Naranjo-Rivera acquired a so-called “pending”
immigration status. The record suggests that he could have applied to become a
permanent resident of the United States but, for reasons that
are not entirely clear, he chose not to do so. Nevertheless, he was issued a United
States
social security card and was allowed to work. He was also previously married
in the United
States
and is the father of several American-born children with his first wife. Throughout
the record, Mr. Naranjo-Rivera’s United States immigration status is
variously described. He is noted as a “legal resident”, a “permanent
resident”, and a “convention refugee”. In other documents, he is acknowledged
to have a right of return to the United States in accordance with his
possession of an alien resident card. In his amended Personal Information Form
(PIF), he stated that he did not believe that he would be allowed to return to Cuba. In other
places in the record, Mr. Naranjo-Rivera described himself as stateless with no
remaining United
States
immigration status.
[9]
Mr.
Naranjo-Rivera’s refugee claim was based on the above-noted history of
political persecution in Cuba and a later history of discrimination and
harassment during his years as a United States resident. He claimed
that his problems in the United States escalated after the
events of September 11, 2001 and he expressed considerable disdain for the
prevailing political atmosphere there.
[10]
Ms.
O’Brien’s claim to protection was somewhat derivative from that of Mr.
Naranjo-Rivera but she, too, claimed to have been the victim of discriminatory
behaviour stemming from the marital relationship.
The Board Decision
[11]
The
Board’s decision turned primarily on its negative assessment of Mr.
Naranjo-Rivera’s credibility. It closely examined his evidence of political
persecution in Cuba and identified a number of perceived
inconsistencies and testimonial weaknesses. Those findings led the Board to
conclude that he lacked credibility and that his testimony was untrustworthy.
[12]
Somewhat
surprisingly, much of the Board’s attention was focussed on the likelihood that
Mr. Naranjo-Rivera would be deported to Cuba. It seems
to have treated his claim as though it was framed against Cuba despite the fact
that he had lived in the United States for 24 years under some
form of legal asylum. Although the Board’s decision does describe, in some
measure, Mr. Naranjo-Rivera’s immigration status in the United
States,
it says nothing about whether he could resume his United States residency if he
was returned there from Canada.
[13]
The
Board based its adverse credibility conclusion on perceived inconsistencies in
Mr. Naranjo-Rivera’s evidence including the following:
(a)
Mr.
Naranjo-Rivera’s failure to refer to his father’s political profile in his
original PIF; when questioned about this discrepancy, he appeared “evasive”;
(b)
his
failure to mention in either his original PIF or the amended version that he
had been a member of the CDP;
(c)
his
apparent denial at the Port of Entry (POE) that he had ever been affiliated
with a political party or opposition group in Cuba along with his failure to mention
his status as a political prisoner in that country; and
(d)
an
inconsistency between his testimony that he did not have legal counsel during
his POE interview and documentary evidence indicating that he did.
[14]
The
significance of the above-noted testimonial deficiencies was summed up in the
Board’s decision in the following passage:
…For all of these reasons, I find the
male claimant’s explanation for not including his allegations respecting his
father’s political profile and his alleged Christian Democratic Party
membership in Cuba in his original PIF narrative, and his failure to disclose
to the immigration officer that he was a political prisoner in Cuba to be
unreasonable. I find the male claimant’s failure to do so significantly
undermines the credibility of all of these allegations.
[15]
The
Board also considered Mr. Naranjo-Rivera’s explanation for declining to apply
for “permanent residence” status in the United States and found it
to be wanting. This, too, was said to undermine his credibility with respect
to his allegations of past mistreatment in Cuba.
[16]
Finally,
the Board found that it would now be safe for Mr. Naranjo-Rivera to return to Cuba. The
Board’s conclusions on this point were as follows:
…I also refer to my negative findings
respecting the male claimant’s alleged anti-Castro political opinion and
activities in Cuba prior to 1980 and his alleged
anti-government political activities in the United States. Given my negative credibility
findings, the passage of time since the male claimant and his father
departed Cuba, and the documentary evidence before me on the PDC and the
current Christian Democratic Movement in Cuba, I find on a balance of
probabilities that Cuban government officials would have no interest in the
male claimant if he were to return to Cuba.
[Emphasis added]
[17]
With
respect to the claims by Ms. O’Brien and Ms. Naranjo-Rivera, the Board found
that there was insufficient evidence to establish that they had a well-founded
fear of persecution or that they would be subjected to persecution in the United
States.
According to the decision, the evidence offered by Ms. O’Brien established no
more than the experience of some prior isolated incidents of ethnic discrimination
and profiling.
Issues
[18]
(a) What
is the standard of review applicable to the issues raised on this application?
(b) Did
the Board commit any reviewable errors in its decision?
Analysis
[19]
It
is well established that the Board’s credibility conclusions are entitled to
the highest level of judicial deference. Nevertheless, such conclusions are
reviewable if they are based upon findings of fact that are perverse,
capricious or made without regard to the evidence: see Chen v. Canada (Minister
of Citizenship and Immigration), [2002] F.C.J. No. 1611, 2002 FCT 1194 at
paras. 4-5.
[20]
Counsel
for the Respondent has candidly acknowledged that the Board made three
erroneous findings to support its credibility conclusions. Nevertheless, the
Respondent argues that those errors are not of sufficient significance to
overcome Mr. Naranjo-Rivera’s obvious credibility problems and, therefore, the
decision should stand. I do not agree.
[21]
It
is obvious that the Board erred by finding that Mr. Naranjo-Rivera had failed
to mention his father’s political profile in his original PIF and only added it
to the amendment. The original PIF clearly stated that his father had been a
co-founder of the CDP and had been imprisoned for eight (8) years as a
consequence of his political activities. Furthermore, the Board’s decision
indicates that Mr. Naranjo-Rivera was evasive when asked about this supposed
omission. One might well expect a witness to appear confused, uncertain or evasive
if he is confronted by a non-existent inconsistency; but the problem is
magnified here by the fact that Mr. Naranjo-Rivera was never questioned about
this supposed omission from his PIF. The Board’s characterization of Mr. Naranjo-Rivera
as evasive with respect to this point is, therefore, not only unfair but also
completely unsupported by the evidence.
[22]
The
Board’s finding that Mr. Naranjo-Rivera had failed to identify his own
membership in the CDP in his amended PIF was also clearly an error. That
document stated that he had “worked in the underground CDP which had ties with
other anti-Castro organizations”.
[23]
Finally,
it is readily apparent that the Board erred by finding that Mr. Naranjo-Rivera
had been represented by legal counsel during his June 15, 2004 immigration
interview. Mr. Naranjo-Rivera explained that he was reluctant to offer much
detail during that interview in the absence of legal representation, an
explanation the Board found lacking but on the basis of its own mistake.
[24]
It
seems to me that these mistakes by the Board are material to its credibility conclusion.
They are not matters of peripheral detail which might have been overwhelmed by
other significant credibility problems.
[25]
Because
the Board’s finding that Mr. Naranjo-Rivera could now return to Cuba without any
remaining risk was based, in part at least, on its disbelief of his evidence of
previous political persecution, that aspect of the decision is also rendered
unsound.
[26]
In
the result, the Board’s decision is sufficiently unreliable that this case must
be returned for reconsideration on the merits.
[27]
The
decision to remit this case for reconsideration applies only to Mr.
Naranjo-Rivera’s refugee claim. No challenge was taken by Ms. O’Brien either
on her own behalf or on behalf of Aurora Naranjo-Rivera, with respect to the
Board’s rejection of their claims against the United States. I would
add that those claims to protection were clearly unmeritorious and the Board
was correct in its treatment of them.
[28]
There
are two other issues concerning Mr. Naranjo-Rivera’s claim that remain of
concern.
[29]
It
seems to be that the Board’s stated concern about Mr. Naranjo-Rivera’s delay in
seeking permanent residence status in the United States was
misplaced. Mr. Naranjo-Rivera had obtained asylum in the United States upon
his arrival there from Cuba. He was, therefore, safe and not at risk
of being returned to Cuba. Whether or not he ever took the next
step towards obtaining United States citizenship does not
give rise to an inference that he lacked a reasonable fear of returning to Cuba. Similarly,
the fact that he took twenty-four (24) years to apply for refugee status in
Canada says nothing about whether he feared a return to Cuba but it could
be a highly relevant consideration in determining if he had a reasonable fear
of persecution in the United States. This leads me to my
final point.
[30]
If
Mr. Naranjo-Rivera enjoyed an unqualified right to resume his United States
residency, the issue of a return to Cuba would presumably be
moot. In that event, his only claim to protection would have to be framed
solely against the United States which, in the case of his wife and child,
the Board reasonably found to be unmeritorious.
[31]
Suffice
it to say that whatever immigration status Mr. Naranjo-Rivera enjoyed in the United
States,
he was allowed to remain there, to marry, to raise a family and to be gainfully
employed for twenty-four (24) years. Indeed, it appears that he was allowed to
remain in the United
States
under colour of law. There is no indication that the American authorities were
ever inclined to return him to Cuba and it appears that he has no present wish
to do so. It is entirely possible that he would be allowed to continue his United
States
asylum and certainly the other members of the family have a right of return.
[32]
It
seems to me, therefore, that if Mr. Naranjo-Rivera’s claim is reconsidered, the
question surrounding his right to return to the United States to resume
his previous immigration status needs to be conclusively answered. If he has a
right of return which will recognize his previous asylum status, then his claim
to refugee protection in Canada should be assessed as against the United
States and not against Cuba.
Conclusion
[33]
This
application for judicial review is allowed with the matter to be remitted to a
differently constituted panel of the Board for redetermination on the merits.
The Respondent did not propose a certified question and no question of general
importance arises on these reasons.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be remitted
for reconsideration by a differently constituted panel of the Board.
"R. L. Barnes"
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