Docket: IMM-5491-13
Citation:
2014 FC 609
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 24, 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEEN:
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WILFREDO GONZALES HORTA
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GLADYS VERDECIA PENA
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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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ORDER AND REASONS
[1]
CONSIDERING the
application for judicial review of the decision by the Refugee Protection
Division [RPD] dated July 24, 2013, refusing the application to be recognized
as refugees or persons in need of protection under sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]; the
application for judicial review was made under section 72 of the Act;
[2]
CONSIDERING the
memoranda that the parties filed in support of their arguments;
[3]
AND CONSIDERING the
review that the Court conducted of the memoranda and the representations made
at the hearing on May 8, 2014. The Court, for the following reasons,
dismisses the application for judicial review.
[4]
The facts of this case are simple. The
applicants, who are spouses and are both Cuban citizens, seek protection under
sections 96 and 97 of the Act. They submit that their political opinions
resulted in them being harassed to the point where it constituted persecution
against them.
[5]
The difficulties they allegedly experienced in
Cuba began with the attempts made by their daughter, who is a doctor, to leave
Cuba for Canada. Since it was taking a long time for her exit visa to be
granted, the principal applicant attempted to expedite the matter with his
national government. The visa was granted in November 2008, allowing her to
come to Canada.
[6]
Less than two years later, the principal
applicant was able to visit Canada as a result of the visa and exit authorization
he had obtained. At the end of his stay, he returned to his country. On his
return to Cuba, he obtained a new exit visa, this one for the United States,
and he left Cuba on December 27, 2010. The same day, the female applicant
left Cuba, but for Canada, using a visa she had obtained. The principal
applicant crossed the border between Canada and the United States on
January 9, 2011, and both the husband and wife sought Canada’s protection
in January 2011.
[7]
To justify their claim for refugee status and
protection, the applicants allege that they suffered harassment following their
daughter’s departure for Canada. They were expelled from Cuba’s Communist Party.
However, the evidence establishes that, other than some verifications about
them, none of which would qualify as harassment, they did not suffer any
inconvenience as a result of their expulsion from the Communist Party. Thus,
they were able to continue operating the craft shop, they received medical care
and their housing was not affected.
[8]
In my view, the RPD properly found that this
treatment did not constitute persecution, which was defined by the Supreme
Court of Canada in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, as
“sustained or systemic violation of basic
human rights demonstrative of a failure of state protection”. Indeed, after they were expelled from the Communist Party, the
principal applicant was allowed to leave Cuba twice in the same year,
and during the same period of time the female applicant was also able to obtain
a visa permitting her to go to Canada. There seems to me to be no doubt that
the level required for us to talk about persecution was not reached in this case.
Therefore, this disposes of the question of whether the applicants could avail
themselves of these sections by reason of their past life in Cuba.
[9]
But the RPD went farther. It considered the
applicants’ situation if they had to be returned to Cuba in view of the fact
that they exceeded the period for which they had been authorized to be outside
Cuba and the possibility that the authorities could know that they sought
refugee protection.
[10]
The applicants have not satisfied me that the
RPD’s analysis was deficient in any way, let alone that it was unreasonable.
The only allegation made by the applicants is that if they return to Cuba they
will be punished. It is one thing to be punished; it is quite another to be
persecuted. Indeed, the evidence tends to show that the possible fine could be
less than Can$100. A prison sentence appears to be completely unlikely. Such a
penalty cannot in any way be equated to persecution.
[11]
I add that it appears to me that the
jurisprudence suggested by the respondent, according to which a person cannot
validly rely on their own violations of the laws of general application of their
country of nationality to attempt to create a ground under sections 96 and
97 of the Act, apply perfectly in this case (Valentin v Canada (Minister of
Employment and Immigration), [1991] 3 FC 390 (FCA); Zandi v Canada
(Minister of Citizenship and Immigration), 2004 FC 411, 35 Imm LR (3d) 273;
Del Carmen Marrero Nodarse v Canada (Citizenship and Immigration), 2011 FC
289; Perez v Canada (Citizenship and Immigration), 2010 FC 833). There
may be some exceptions to this rule where the evidence supports a finding of clearly
excessive or extra‑judicial punishment for an illegal exit (Donboli v
Canada (Minister of Citizenship and Immigration), 2003 FC 883). No such
evidence exists in this case.
[12]
Indeed, the facts of this case appear to show
that the applicants were attempting to join their daughter who has established
Canada as her home. The principal applicant visited her in 2010, and barely
three months later visas had been obtained, with respect to him, for the United
States and with respect to his wife, for Canada, permitting them to leave Cuba
the same day, December 27, 2010. Refugee claims followed once they arrived
in Canada. The issue is not that the applicants can be criticized for wanting
to join their daughter; rather, it is that sections 96 and 97 are reserved
for cases that deserve such treatment. The words of Justice Hugessen when
he was a member of the Federal Court of Appeal seem completely appropriate to
me:
The appellant's position is
based on a fundamental misconception of Canada's refugee determination system;
the purpose of that system is to provide safe haven to those who genuinely need
it, not to give a quick and convenient route to landed status for immigrants
who cannot or will not obtain it in the usual way (Urbanek
v Canada (Minister of Employment and Immigration), [1992] 17 Imm LR (2d)
153).
[13]
Accordingly, the application for judicial review
must be dismissed. There is no question to certify.
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