Date: 19990518
Docket: IMM-1021-98
OTTAWA, ONTARIO, MAY 18, 1999
PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
Between:
HEBER LUIS OJEDA DIEGUEZ
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
The application for judicial review is allowed and the matter is referred back to a newly constituted panel.
Danièle Tremblay-Lamer
JUDGE
Certified true translation
M. Iveson
Date: 19990518
Docket: IMM-1021-98
Between:
HEBER LUIS OJEDA DIEGUEZ
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review brought against a decision of the Convention Refugee Determination Division (the panel) on February 12, 1998, that the applicant is not a Convention refugee.
[2] The applicant was born in Cuba in 1971. He is pianist by profession who worked in a hotel in Varadero. He arrived in Canada on February 26, 1996 with a Cuban passport, an exit visa and a Canadian tourist visa which he obtained through the intervention of a Canadian citizen. The applicant claimed refugee status on religious grounds on October 16 of the same year.
[3] The applicant and his family are Seventh Day Adventists. His father is a pastor of that religion who was incarcerated several times because of this position. His brother was imprisoned for three years, probably at the beginning of the 1990s, because of his failure to do his military service on the ground of his religious beliefs. He was granted status as a political refugee in the United States in 1994.
[4] The panel did not believe the applicant would be persecuted for his religion because he was able to take time off from his work as pianist in a hotel every Friday to go to church.
[5] The panel also found that the applicant's fear of persecution based on his refusal to do his military service on religious grounds was not supported by the documentary evidence1 which recounts the authorities' change of attitude toward religious minorities.
[6] However, a reading of the documentary evidence as a whole does not support this finding. On the contrary, it describes the numerous difficulties faced by religious minorities. The following appears in "Country Reports on Human Rights Practices for 1996" for Cuba, cited by the panel to support its claim of a change in attitude:
| However, religious persecution continues. In December 1995, the Government issued a resolution preventing any Cuban or joint enterprise from selling computers, fax machines, photocopiers, or other equipment to any church. A December 1, 1995 decree signed by Politburo member Jose Ramon Machado Ventura prohibited Christmas trees and decorations in public buildings, except those related to the tourist or foreign commercial sector, and completely prohibited Nativity scenes. (Official recognition of all religious holidays ended in 1961.) In February the Union of Communist Youth (UJC) affiliate within the lawyers' collective in the town of Palma Soriano expelled attorney Cesar Antonio Martinez Melero from his longstanding membership because of his active involvement in the Roman Catholic Church. In April a disciplinary board of the Julio Mella Polytechnic Institute suspended Raul Leyva Amaran's student stipend for 6 months for refusing on religious grounds to participate in a February 27 rally in support of the Government's shootdown of two civilian U.S. aircraft. Leyva had said that as a Catholic, he "did not support the violent death of anyone and for reasons of conscience [he] could not go to the rally." |
| The Government continued its 1961 prohibition on nearly all religious processions outside churches and denied churches access to the mass media. |
| The Government requires churches and other religious groups to register with the provincial registry of associations to obtain official recognition. The Government prohibits, with occasional exceptions, the construction of new churches, forcing many growing congregations to violate the law and meet in people's homes. Government harassment of private houses of worship continued, with evangelical denominations reporting evictions from, and bulldozing of, houses used for these purposes. In the province of Las Tunas, neighbors of one private house of worship tried to provoke fights with parishioners, blared music during religious services, and tried to pour boiling water through the windows during a religious service. In the western mining town of Moa, a group of evangelical leaders submitted a written appeal to the local Communist Party to stop the harassment of church members and the demolition of private houses of worship and to lift the prohibition on the construction, expansion, or remodeling [sic] of churches. The authorities warned religious leaders in Havana that they would impose fines from $550 to $2,800 (10,000 - 50,000 pesos), imprison leaders and withdraw official recognition from the religious denomination itself unless the private houses of worship were closed. |
| The Government, however, relaxed restrictions on members of the Jehovah's Witnesses, whom it had considered "active religious enemies of the revolution" for their refusal to accept obligatory military service or participate in state organizations. The Government authorized small assemblies of Jehovah's Witnesses, the opening of a Havana central office, and the publishing of the Jehovah's Watchtower magazine and other religious tracts. |
| State security officials regularly harassed human rights advocates prior to religious services commemorating special feast days or before significant national days. A crowd of thugs, armed with wooden clubs hidden inside rolled-up newspapers, surrounded the Sacred Heart Church in Central Havana before a mass on July 13, the second anniversary of the Cuban Coast Guard's sinking of the "13th of March" tugboat in which 41 people died.2 |
[7] Although the document indicates that the rules were relaxed with respect to military service, it observes that in general, religious persecution continues.
[8] In my view, it is arbitrary for the panel to excerpt a few passages from this document to establish that there was a change in attitude, when the document as a whole indicates the opposite.
[9] The same is true of the other document quoted by the panel. Apart from a short passage in which the secretary of the Watch Tower Bible and Tract Society mentions that "there seems to be a move toward granting more freedom to our people",3 the document as a whole indicates that in practice, religious activities are still severely restricted.
[10] It appears from the record that the panel did not have regard to all of the evidence in drawing its conclusion; accordingly, this omission constitutes an error in law.4 Under these circumstances, I find that the documentary evidence does not support the panel's decision, as it disregarded the most relevant evidence.
[11] For these reasons, the application for judicial review is allowed and the matter is referred back to a newly constituted panel.
[12] Neither counsel recommended that a question be certified.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
May 18, 1999.
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1021-98
STYLE OF CAUSE: Heber Luis Ojeda Dieguez v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 5, 1999
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED: May 18, 1999
APPEARANCES:
Steward Istvanffy
FOR THE APPLICANT
Daniel Latulippe
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Steward Istvanffy
Montréal, Quebec
FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 Country Reports on Human Rights Practices for 1996; Question and Answer Series, DIRB 1996, Cuba, Human Rights at p. 38.
2 Country Reports on Human Rights Practices for 1996, Department of State, February 1996, Court record at p. 129.
3 Question and Answer Series, DIRB 1996, Cuba, Human Rights at p. 28.
4 Toro v. M.E.I., [1981] 1 F.C. 652 (F.C.A.).
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