Docket: IMM-5445-15
Citation:
2016 FC 759
Ottawa, Ontario, July 6, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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LORETA ESCOBAR
ANEL
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of
the November 20, 2015 decision of the Refugee Appeal Division [RAD] confirming
the April 30, 2015 decision of the Refugee Protection Division [RPD] of the
Immigration Review Board, that denied refugee or person in need of protection
status to Ms. Loretta Escobar Anel under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
II.
Background
[2]
The Applicant, Ms. Loretta Escobar Anel, is a
citizen of Cuba who claims she is being persecuted by state security officials
who suspect her of collusion with dissidents. The Applicant worked as Chief of
Accounts for the Baptist Convention, a church organization with ties to a
network of other Baptist churches. As part of her duties, she was responsible
for keeping track of donations from these affiliated churches, which are
predominantly in Canada, the United States, and Europe. Her daughter (who is
not party to this application) also worked for this organization as secretary
to the president.
[3]
In late 2013, the Applicant returned from a trip
to Canada where she was visiting her mother and brother to find that her
daughter had been questioned by state security officials regarding whom the
church had been aiding with its donations. Specifically, the officials sought
to find out if the church supported dissidents with tangible or monetary
donations.
[4]
In September 2014, two officers attended the
Applicant’s place of work and escorted her to a police station, where she was
questioned as to where donations were allocated. The Applicant responded she
did not know, as such decisions are confidential and made by the president. Prior
to her release, the officers instructed the Applicant to convince her daughter
to give them information.
[5]
Over the following months, the Applicant and her
daughter were repeatedly questioned. On the final occasion, the officers
threatened to charge the daughter with “failure to
collaborate with state security”, and both were threatened with charges
of “revealing state secrets” if they told anyone
of the questioning. As a result, neither the Applicant nor her daughter sought
help from church officials.
[6]
The daughter left Cuba for Ecuador in December
of 2014. Shortly thereafter, the Applicant was questioned and again threatened with
charges for failing to reveal the benefactors of the donations.
[7]
In her personal narrative, the Applicant states
that she supports the dissident movement and fears she will be subject to
harassment and surveillance by local authorities, as well as denied employment
if she returns to Cuba.
[8]
In the RPD decision, the RPD accepted the
Applicant’s identity, and several aspects of her claim. The RPD believed that both
the Applicant and her daughter worked for the organization in the roles they
claimed to have, and that they had been questioned by authorities regarding the
church’s support of dissidents.
[9]
However, the RPD also found the Applicant lacked
credibility on a number of issues. It drew a negative inference due to the
Applicant’s vague recollection of the dates of when she was interrogated by the
authorities: the incidents were fairly recent, central to her claim and
directly precipitated her fleeing Cuba.
[10]
Further, the RPD found the Applicant was the
author of her own misfortune for the number of times she had been questioned. The
Applicant testified that the church does not support dissidents, and she should
have disclosed this to the officials, instead of refusing to cooperate.
[11]
The RPD also found it unreasonable for the
Applicant to have refrained from seeking help from the president or other
higher-ups in the church organization. Notwithstanding the Applicant and her daughter
had been threatened with state security charges were they to reveal they had
been questioned, this threat did not occur until later questioning, and there
was no barrier preventing her from informing her superiors following the earlier
questioning.
[12]
Finally, the RPD found that even if all of the
allegations were true, they did not amount to risk of persecution under section
96 or 97, either prior to leaving Cuba or forward-looking if the Applicant were
to return to Cuba. The RPD reasoned that since the Applicant no longer works
for the church, she would no longer be of interest to the authorities. Moreover,
though she may have difficulty getting a job with the government, she would be
employable in the private or non-profit sectors, and accordingly, there is no
forward-looking risk. Further, as an older woman who worked for a church, the
Applicant does not fit the profile of someone at risk upon return to Cuba as a
failed asylum seeker.
[13]
Considering the entirety of the record, the RAD
concluded the Applicant was not credible, and even if her allegations were
taken as true, the facts do not support a finding of discrimination elevated to
the level of persecution if she were returned to Cuba.
[14]
The RAD agreed with the RPD’s findings on
several fronts. The RAD found it significant that the Applicant could not
recall specific dates for the incidents which constitute the foundation for her
claim. Upon reviewing the audio recording of the RPD hearing, the RAD
determined that the RPD correctly assessed this credibility issue, particularly
given the fact the events were recent and central to the Applicant’s claim.
[15]
The RAD also agreed with the RPD that although
the Applicant’s personal narrative states that she supports the dissidents,
there is nothing in the record to suggest Cuban officials are aware of this
fact.
[16]
In addition, the RAD agreed it did not make
sense for the Applicant and her daughter to refuse to provide information to
the officers when they knew the church did not support dissidents. The RAD also
agreed with the plausibility finding that the president of the church likely
knew of the questioning already, and thus rejected the Applicant’s explanation for
why she did not ask for assistance. The RAD also agreed with the observation
that the Applicant could and should have told someone about the questioning
months after it began and before the later questioning took place when she was warned
to keep silent.
[17]
Further, the RAD held that the laws under which
the Applicant claims to face discrimination are laws of general application,
which are presumed to be neutral unless there is evidence to the contrary. The
RAD examined the National Documentation Package and found that although the
Applicant may face some discrimination in terms of finding employment and
gaining access to social services, there was no evidence to suggest she would
be entirely cut off from these resources. The documentation also indicates that
control over individuals considered to be dissidents has been relaxed since
2012, and there is insufficient credible evidence that the Applicant would be
subject to treatment rising to the level of persecution should she return to Cuba.
This is particularly true given that the Applicant was not considered a
dissident when she left for Canada, and does not have a profile which would
cause her to be so targeted if returned to Cuba.
III.
Issues
[18]
The issues are:
- Did the RAD
apply the correct standard of review to the RPD’s decision and was the
RAD’s decision reasonable?
IV.
Standard of Review
[19]
The RAD is to conduct an independent assessment
of the RPD’s decision, and review it on the standard of correctness. This Court
is then to review the RAD’s decision on the standard of reasonableness (Huruglica
v Canada (Minister of Citizenship and Immigration), 2016 FCA 93 [Huruglica]).
V.
Analysis
A.
Did the RAD apply the correct standard of review
to the RPD’s decision, and was the RAD’s decision reasonable?
[20]
The Applicant submits that the RAD committed
four errors. First, with regard to the negative credibility finding, the RAD
erred by not considering the Applicant’s submissions as to why she did not give
specific dates for the interrogations and for not providing reasons for
rejecting these submissions. Moreover, the Applicant argues it is inconsistent
for the RAD to have found that not all of the alleged interrogations took
place, but also that the Applicant caused the state security officers to be
persistent by being uncooperative.
[21]
Second, the Applicant claims it was improper for
the RAD to find her refusal to cooperate with the officers unreasonable. The
RAD failed to consider the fact that the Applicant did not know for certain
that none of the money was going to dissidents, and thus could not provide the
officers a list of the beneficiaries.
[22]
Third, the Applicant argues the RAD’s
plausibility finding that the president of the organization likely knew of the
questioning was unjustified.
[23]
Fourth, the Applicant contends the RAD failed to
assess the Applicant’s risk profile as an individual who sympathises with the
dissidents. The Applicant is perceived as someone who hid information from the
state, and the documentary evidence supports the view that all forms of dissent
can have an impact on individuals. The RAD erred by considering surveillance
and denial of employment as forms discrimination, rather than persecution.
[24]
Contrary to the Applicant’s above assertions, I
find that the RAD applied the correct approach to reviewing the RPD decision,
and committed no reviewable error in its assessment of the evidence that
rendered its decision unreasonable.
[25]
In Huruglica, above, the Federal Court of
Appeal held that while the RAD must conduct its own analysis of a matter and review
the RPD findings on the standard of correctness, the requirements insofar as
deference to the RPD are to be evaluated on a case-by-case basis. Where a case
involves considerations of credibility, the RAD must determine if the RPD was
in fact better positioned to make a determination on that aspect of the claim.
Where the error or lack thereof is easily identified by the RAD, the RPD may
not have any real advantage; only where the RAD concludes the hearing of oral
evidence by the RPD is essential should it remit the matter back to the RPD for
redetermination.
[26]
The fact that the RAD came to the same
conclusions as the RPD is not an indication that no independent review was
conducted. The RAD referenced not only the RPD decision, but also reviewed the
record, including the audio tape of the hearing and the Applicant’s submissions.
The RAD’s analysis not only reviews the RPD reasoning but expands upon the
RPD’s findings and factual bases for its reasons. I find that the RAD undertook
an independent analysis, as instructed by the Federal Court of Appeal, and did
not simply pay lip service to the notion of independent review.
[27]
The Applicant’s contention that the RAD did not
give adequate consideration to her submission that questioning before the RPD
should not be a memory test is also not supported on the record. It was
reasonable for both the RPD and RAD to draw negative inferences from the lack
of details provided by the Applicant in answering relevant and pertinent
questions in respect of recent events central to her claim.
[28]
I also do not find that the Applicant’s
contention that the RAD ignored evidence relating to a list of donors and benefactors
had any significant impact on the RAD’s decision. It is apparent that the RAD considered
the relevant facts and reviewed the evidence before coming to its conclusion. Moreover,
it is trite law that the RAD need not make an explicit finding on each
constituent element, however subordinate, leading to its final conclusion (NLNU
v Newfoundland & Labrador (Treasury Board), 2011 SCC 62 at para 16).
[29]
While it was unnecessary to speculate about what
the President knew and for the RAD to adopt the RPD’s finding that the
Applicant’s lack of cooperation worsened her situation, these findings were not
material to the RAD’s ultimate decision. Moreover, it was entirely reasonable
for the RAD to find the Applicant’s testimony inconsistent regarding why she
did not tell the president about the interrogations, considering the fact she
was only threatened with charges during later incidents.
[30]
Counsel for the Applicant acknowledged that the
Applicant was not at risk of persecution prior to leaving Cuba. I equally find
that the RAD reviewed the arguments and the record on this matter and
reasonably came to the conclusion that the facts also do not support a forward
looking risk, or a risk of treatment rising to the level of persecution.
[31]
Given the above findings, the RAD’s decision is
reasonable, and I would therefore dismiss the application for judicial review.
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