Date: 20070706
Docket: IMM-2151-06
Citation: 2007 FC 721
Ottawa, Ontario, July 6,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
GISELLE
ACOSTA RAMIREZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Protection Board (the Board), dated March 30, 2006, which determined that the
applicant was neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requests that the Board’s decision be set aside and that the matter be
remitted for redetermination by a differently constituted panel of the Board.
Background
[3]
The
applicant, Giselle Acosta Ramirez, is a twenty-seven year old citizen of Cuba. She claimed
refugee protection in Canada alleging a fear of persecution on the
basis of her political opinion.
[4]
The
applicant explained the circumstances leading to her claim for refugee
protection in the narrative section of her Personal Information Form (PIF). The
applicant did not support the Communist party and resisted becoming a member
until her third year of medical school, when it became clear that she would
have to join the party in order to become a doctor. She was pressured to join
the party by influential faculty members and other doctors. The applicant was
forced to donate blood in order to cleanse herself from her previous refusal to
join the party. The applicant deliberately lost her membership card almost as
soon as she received it. She regularly attended Communist marches and meetings
in order to avoid trouble from Cuban authorities. The applicant was not
required to produce her membership card in order to attend these events, as the
party kept records identifying party members. Her mother is a member of the
Communist party. While not noted in her PIF, she described her father as a
political dissident during the refugee hearing.
[5]
The
applicant experienced continuous sexual harassment during her studies and as a
doctor. She was forced to join a medical mission to Guatemala from March
2004 until March 2005. The applicant feared for her life during this mission. She
worked alone and was subjected to dangerous conditions. The applicant was
scheduled to attend a similar mission to Venezuela in September
2005. She began thinking about escaping Cuba, which she
described as an “Alcatraz jail”, in January 2005. She formulated a plan to
escape Cuba with the
help of Franco Bello, a Canadian friend whom she had met while he was visiting Cuba. Bello found
a health-related conference in Montreal which she could attend.
The applicant obtained permission from the Cuban government to enter Canada on a
thirty-day visa in order to attend the international conference on sexology. The
applicant was part of a group of seventeen Cubans who attended the conference.
Her intention was to attend the conference and escape from the group in order
to seek asylum in Canada.
[6]
The
applicant arrived in Canada on July 10, 2005, and made a claim for
refugee protection on July 26, 2005. Since her arrival in Canada, the
applicant has been informed that Cuban authorities have contacted her parents
and questioned them about her whereabouts. The authorities have also tried to
convince her parents to persuade her to return to Cuba. The
applicant fears being charged with desertion by Cuban authorities and
imprisoned. She also fears losing her right to work as a doctor. The
applicant’s refugee hearing was held on March 24, 2006, and by decision dated
March 30, 2006, the Board found that the applicant was neither a Convention
refugee nor a person in need of protection, since she had not demonstrated a
well-founded fear of persecution or other harm. This is the judicial review of
the Board’s decision.
Board’s Reasons
[7]
The
Board found that the applicant was neither a Convention refugee nor a person in
need of protection. The applicant’s testimony did not generally appear
embellished. However, the Board found that she had embellished her story about
her father’s status as a dissident figure, a detail which had not been
mentioned in her Port of Entry (POE) notes or PIF. The applicant’s evidence
suggested that she was not perceived as a dissident in Cuba. The
applicant was well-educated, a doctor and was sent to serve in Guatemala. She had
also become a member of the Communist party, as was expected of Cuban doctors.
Documentary evidence indicated that Communist party membership was a prerequisite
for professional advancement in Cuba.
[8]
The
applicant was asked why she did not return to Cuba when she
knew that she would be penalized for remaining in Canada. The
applicant responded that while she opposed the Cuban system, she did not show
her opposition in public. The Board cited Valentin v. Canada
(Minister of Employment and Immigration), [1991] 3 F.C. 390, (1991) 167
N.R. 1, in which the Federal Court of Appeal held that refugee legislation was
not meant to protect people, who having been subjected to no persecution,
created a fear of persecution by making themselves liable to punishment for having
violated a law of general application. This principle also applied in cases
where the transgression was motivated by political dissatisfaction. Additional
jurisprudence established that Valentin applied to refugee claims
involving Cuban citizens, and to section 97 claims.
[9]
The
applicant’s POE notes, PIF, and testimony indicated that she would: be considered
a dissident by the Cuban government; lose her right to work as a doctor; be
imprisoned for desertion; and be beaten. She also indicated that her parents
had been contacted by Cuban authorities. The Board found it unclear whether
Cuban authorities would treat the applicant as a political dissident or a young
person lured away by career opportunities. The documentary evidence suggested
that there was no fixed punishment for overstaying abroad. Refugee proceedings
in Canada are private
and there was no indication that Cuban authorities knew of her claim. The Board
concluded that the applicant had never been perceived as a political dissident.
It was noted that the applicant had been sent to Canada for the
conference, which suggested that Cuban authorities had confidence in her.
The Board found no evidence that the
applicant’s parents had suffered reprisals for her desertion. Her mother was a
Communist and had not been fired from her teaching position. However, she had
been asked to persuade the applicant to return to Cuba. The
applicant gave details during the hearing about her father which had not been
included in her POE notes or PIF. She testified that he belonged to an
opposition group, prepared food for political prisoners, distributed medicine
to fellow dissidents and was under government surveillance. There was no
evidence that he had been arrested for engaging in these activities. The
evidence suggested that Cuban authorities did not perceive the applicant as a
dissident and had not arrested her parents for her desertion.
[10]
While
documentary evidence established that outspoken dissidents were mistreated in Cuba, the
applicant was not similarly situated, in that she was a member of the Communist
party. The Board noted a report which indicated that the United States
Committee for Refugees (USCR) routinely monitored returned migrants to Cuba and had not
reported any mistreatment of such individuals. Had evidence of the mistreatment
of returned refugees been available, the Board reasoned that counsel would have
produced it.
[11]
In
questioning the applicant, counsel falsely stated that her PIF indicated that
she feared being raped upon return to Cuba. During the hearing,
the applicant responded in the affirmative when asked by counsel whether she
feared being raped in detention. There was no evidence that female prisoners in
Cuba were being
raped. The Board noted that counsel asked the applicant leading questions which
provoked self-serving and unreliable answers. The Board concluded that the
applicant was unable to demonstrate that she was at risk, having regard to her
own circumstances or those of similarly situated persons. The Board applied the
Gender Guidelines, but did not find the applicant trustworthy on important
elements of her claim.
Issues
[12]
The
applicant submitted the following issues for consideration:
- Did the
Board err in finding that the applicant was not seen as a dissident in Cuba?
- Did the
Board err in finding that the applicant was fearful of returning to Cuba only
for the reason of being liable to punishment for violating a criminal law
of general application?
- Did the
Board err in categorizing the applicant’s case as one of an “overstay” and
the applicant’s fear of the consequences of that “overstay”?
- Did the
Board err in applying the Valentin decision to the applicant’s
case?
- Did the
Board err in finding that there is no fixed punishment for overstaying
abroad but that the authorities decide each case on its own?
- Did the
Board misapply the law in interpreting the migration agreements signed between
Cuba and the United States and their application to the
applicant’s facts?
- Did the
Board err in finding that the documentary evidence dealing with
mistreatment does not include people in the applicant’s situation?
- Did the
Board err in its statement that it is difficult to be clear about how
Cuban authorities would treat the applicant, including whether they would
see her as an opponent of the Cuban system, in light of its other
findings?
- Did the
Board err in finding that there is no evidence that her parents have
suffered any reprisals for her failure to return in time?
- Did the
Board err in regard to the evidence of the applicant’s fear of being raped
in detention and the documentary evidence about this subject?
- Did the
Board repeatedly and unfairly interrupt the applicant in her testimony not
giving her a full opportunity to present her case?
[13]
I
would simplify the issues as follows:
- Did the
Board err in finding that the applicant did not have a well-founded fear
of persecution?
- Did the
Board err in its consideration of the evidence?
- Did the
Board breach the principles of procedural fairness?
Applicant’s Submissions
[14]
The
applicant submitted that the Board erred in finding that she was not perceived
as a dissident in Cuba. It was submitted that when a claimant swears
to the truth of certain allegations, this creates a presumption that the
allegations are true, unless there is reason to doubt them (see Maldonado v.
Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302, (1979) 31 N.R. 34 (C.A.)). The
applicant noted that the Board found her to be credible overall. Her PIF
narrative indicated that she had to donate blood as a cleansing of her initial
refusal to join the Communist party and was criticized for not being an
aggressive member. It was submitted that this was evidence of her perception as
a dissident. The Board stated that it was difficult to be clear about whether
Cuban authorities would perceive the applicant as a young person lured away by
career opportunities or as an opponent to the Cuban system. It was submitted
that this choice of wording by the Board suggested that the finding that she
was not perceived as a dissident was not definitive.
[15]
The
applicant submitted that the Board erred in finding that she only feared
punishment for having violated a law of general application. The Port of Entry
(POE) notes indicated that she feared being considered a “contra revolutionary
person”, being imprisoned and losing her right to work as a doctor. Her PIF
narrative indicated that she feared persecution on the basis of her political
opinion. She also feared being forced to participate in a dangerous medical
mission to Venezuela in September
2005.
[16]
The
applicant submitted that the Board committed a patently unreasonable error of
fact in categorizing her case as an “overstay”. The applicant went to Canada as a member
of a Cuban delegation in order to attend a conference. The applicant submitted
that the Cuban government would consider her an opponent for having abandoned
the delegation. The applicant noted Cuban legislation which stated that any
employee fulfilling a mission in a foreign country who abandons their mission
or fails to return to Cuba when required, would be deprived of their
freedom for three to eight years. It was submitted that in light of this
legislation, the Board also erred in finding that there was no fixed penalty
for overstaying abroad.
[17]
The
applicant submitted that the Board erred in applying Valentin (see
above) and De Corcho Herrerra v. Canada (Minister of
Employment and Immigration) (1993), 70 F.T.R. 253, to her case. It
was submitted that this jurisprudence did not deal with the unique case of
Cuban doctors, who are required to demonstrate their allegiance to Castro. The
applicant noted that the Board failed to consider documentary evidence which
dealt with the plight of Cuban doctors. It was submitted that the Board erred
by ignoring relevant testimony and persuasive corroborative documentary
evidence (see Padilla v. Canada (Minister of Employment
and Immigration) (1991), 13 Imm.L.R. (2d) 1, 160 N.R. 156 (F.C.A.)). The
applicant submitted that the Board erred in failing to address documentary
evidence concerning the mistreatment of similarly situated persons. It was
submitted that the Board should consider the totality of the evidence when
making findings of fact and should not ignore relevant evidence (see Tung
v. Canada (Minister of
Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.)).
[18]
The
Board noted documentary evidence which indicated that the USCR did not report
incidents of mistreatment of refugees who returned to Cuba. It was
submitted that the findings in this report were only relevant to refugees
covered by the migratory agreement between the United States and Cuba. The report
therefore did not apply to the applicant. The applicant submitted that the
Board therefore misapplied the law to the facts of her case.
[19]
The
applicant submitted that the Board erred in finding that there was no evidence
that her parents had suffered reprisals for her failure to return to Cuba. It was
submitted that the Board overlooked the applicant’s detailed testimony
regarding her parents’ current situation. The applicant submitted that the
Board overlooked the reality that a person does not have to be fired or jailed
to be persecuted. It was submitted that the Board failed to appreciate why she
had to receive emails written in code, in light of documentary evidence stating
that the Cuban government intercepted emails. The applicant submitted that the
Board erred in finding that there was no evidence of women being raped in Cuban
prisons. It was submitted that the Board also erred in finding that the
applicant had not presented evidence that she feared being raped. During the
hearing, the applicant answered positively when asked by counsel whether she
feared being sexually abused in jailed.
[20]
The
applicant submitted that the Board unfairly interrupted the applicant while she
was testifying and failed to provide her with an opportunity to present her
case. It was submitted that the Board limited the evidence that it was prepared
to listen to on the pretext that it was familiar with country conditions in Cuba.
Respondent’s Submissions
[21]
The
respondent submitted that whether the Board applied the correct legal test to
the applicant’s situation was a matter of mixed fact and law, and was
reviewable on the standard of reasonableness (see Holway v. Canada
(Minister of Citizenship and Immigration), 2006 FC 309). It was submitted
that the standard of review applicable to issues of credibility and the
relevance of evidence was patent unreasonableness, as these questions were
factual in nature (see Aguebor v. Canada (Minister of Employment and
Immigration) (1993), 160 N.R. 315 (FCA)).
[22]
The
respondent submitted that defectors - claimants who triggered their own need
for protection - were generally not bona fide refugees (see Valentin).
This principle had been upheld in cases involving Cuban defectors (see De
Corcho Herrerra). In Dykon v. Canada (Minister of
Employment and Immigration) (1994), 87 F.T.R. 98, 25 Imm.L.R. (2d) 193
(F.C.T.D.), the Court held that Valentin only applied where persecution
had not taken place prior to exit. The Court also confirmed that the principles
in Valentin applied to claims brought under section 97 of IRPA (see Zandi
v. Canada (Minister of
Citizenship and Immigration) (2004), 35 Imm.L.R. (3d) 273, 2004 FC
411). In Cheng v. Canada (Minister of Citizenship and Immigration)
2002 FCT 211, Justice Pinard held that the Board had not erred in finding that
Chinese exit laws, which carried a penalty of five years of imprisonment, did
not amount to persecution.
[23]
The
respondent submitted that applicant’s claim for protection was not bona fide.
The applicant triggered her fear of punishment under Cuban exit laws by
arranging to attend a conference in Canada and leaving Cuba. It was
submitted that the principles in Valentin apply to preclude her claim.
The respondent submitted that the applicant’s fears stemmed directly from her
violation of exit laws (i.e.: losing the right to work as a doctor, punishment
for desertion, imprisonment, being beaten). The respondent submitted that the
applicant’s case was not special simply because she was a doctor. The
respondent noted that thousands of civil servants defected from Cuba daily.
[24]
The
respondent submitted that the Board did not commit a material error in
assessing the applicant’s treatment on return to Cuba. The
applicant pointed to a provision in the Cuban Penal Code which provided that
employees who abandoned a mission in a foreign country would be deprived of
their freedom for three to eight years. However, the document which cited this
provision went on to comment that information about its use could not be found,
since thousands of government employees, including doctors, deserted the Cuban
regime while overseas. The respondent submitted that it was not clear that the
desertion provision would apply to the applicant, since she was attending a
conference, and was not on a foreign mission.
[25]
Should
the law apply to the applicant, evidence about the extent to which it was
enforced was equivocal. Should the applicant be tried under these laws, the
Federal Court had held that a five year penalty for violating exit laws did not
constitute persecution. In addition, the Federal Court of Appeal had expressed
doubt as to whether a sentence for violating exit laws constituted persecution
(see Valentin). Should the Board have erred in failing to mention these
laws, it was submitted that the error was immaterial since the applicant did
not have a bona fide claim for protection.
[26]
The
respondent submitted that the Board considered and weighed the evidence
appropriately. The Federal Court has held that the Board is not required to
refer to every piece of evidence that is contrary to its finding (see Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration) (1998) 157 F.T.R. 35 (F.C.T.D.)). It
was submitted that the Board is presumed to have weighed all of the evidence
unless the contrary is shown (see Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)). The
Board noted that the USCR did not report incidents of the mistreatment of
returned migrants, and it was submitted this statement did not necessarily
refer only to migrants who returned to Cuba from the United States. The
respondent submitted that there was no documentary evidence confirming
mistreatment of returning migrants in the applicant’s situation. The respondent
submitted that the documentary evidence relied upon by the applicant referred
to doctors who had deserted medical missions and denounced the Cuban government,
and was not relevant to the applicant’s situation.
[27]
The
respondent submitted that the Board did not err in assessing the impact of the
applicant’s defection on her parents. The respondent submitted that there was
no necessary correlation between the fact that Cuba monitored
emails and possible harm to the applicant’s parents. It was submitted that in
any event, it was the likelihood of persecution to the applicant, not her
parents, which was material in this case. The documentary evidence suggested
that Cuban authorities punished defectors by denying exit permits to their
family for five years, a penalty which did not engage sections 96 or 97 of
IRPA.
Applicant’s Reply
[28]
The
applicant challenged the respondent’s submission that she had no basis for
fearing returning to Cuba, other than having violated a law of
general application. It was noted that her PIF narrative referred to Cuba as an
“Alcatraz jail” and that she had devised a plan to escape the country. The
applicant submitted that this supported her argument that there were other
reasons for her fear. It was submitted that even if she had not violated the
exit laws, she still would have lost her right to work as a doctor, since she
failed to provide the minimum period of work in exchange of receiving her
medical education. The applicant submitted that the finding in Dykon
supported her case, since the Court stated that Valentin only applied in
cases where persecution had not taken place prior to exit. It was submitted
that the applicant had provided clear evidence of the persecution she faced
while in Cuba.
[29]
The
applicant submitted that she did not try to introduce evidence regarding her
father’s status as a dissident during the refugee hearing. The Board asked
questions about her father and she simply answered them.
Analysis and Decision
Standard of Review
[30]
The
standard of review applicable to the Board’s finding that the applicant did not
demonstrate an objectively well-founded fear of persecution is patent
unreasonableness (see
Singh v. Canada (Minister of
Citizenship and Immigration) (1999), 173 F.T.R. 280, 2 Imm.L.R. (3d) 191
(F.C.T.D.)).
[31]
The
Board may evaluate the probative value of evidence, including documentary
evidence, and the standard of review applicable to such findings is patent
unreasonableness (see Akhter v. Canada (Minister of
Citizenship and Immigration), 2006 FC 914).
[32]
I
wish first to deal with Issue 2.
[33]
Issue
2
Did the Board err in its
consideration of the evidence?
In its decision, the Board stated
the following at page 5:
It is difficult to be clear about how the
Cuban authorities would treat the claimant and whether they would see her as a
young person who was lured by the prospects of a more productive career in Canada or whether they would see her
as an opponent of the Cuban system.
The documentary evidence suggests that
there is no fixed punishment for overstaying abroad but that the authorities
decide each case on its own.
[34]
A
review of the documentary evidence discloses the following penal code section:
LAW
NO. 62.
PENAL
CODE.
NATIONAL
ASSEMBLY OF POPULAR POWER
BOOK
TWO
SPECIAL
PART
OFFENCES
TITLE
II
OFFENCES
AGAINST THE ADMINISTRATION AND THE JURISDICTION
CHAPTER
1
VIOLATION
OF THE DUTIES THAT ARE INHERENT TO A PUBLIC FUNCTION
FIFTH
SECTION
Abandonment
of Functions
Article
135.1. Any civil servant or employee fulfilling a mission in a foreign country
who abandons their mission, or completes or fail to return when required,
expressly or tacitly, will be deprived of their freedom to three to eight
years.
2.
The same sanction applies to any civil servant or employee who upon the
fulfillment of a mission abroad and against the express order of the Cuban
government moves to another country.
[35]
The
evidence discloses that the applicant was at a government approved conference
and decided to remain in Canada and not return to Cuba. The above
provision of the Penal Code clearly indicates a fixed punishment for
overstaying abroad. This is contrary to the Board’s finding that there is no
fixed punishment for her failure to return to Cuba. As I have
no way of knowing how this information would have affected the Board’s
decision, I must set aside the Board’s decision on this ground alone. It is for
the Board to consider this evidence and say whether it would impact the Board’s
ultimate decision. I am of the opinion that the Board has made a reviewable
error and the decision of the Board is therefore set aside and the matter is
referred to a different panel of the Board for redetermination.
[36]
Although
I need not deal with the other issues raised by the applicant, I would note
that some of the documentary evidence would seem to indicate that the situation
of medical doctors in Cuba is different than other professionals.
[37]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[38]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c.27.:
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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.
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.
(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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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.
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.
(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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