Docket: IMM-5038-11
Citation: 2012 FC 323
Ottawa, Ontario, March 19,
2012
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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REINALDO SUAREZ ROSALES
NORIS DIONISIA HERNANDEZ HERNANDEZ
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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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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
Applicants, a wife and husband from Cuba, challenge the
Immigration and Refugee Board’s (Board) decision denying their refugee claim,
which was grounded in a fear of persecution due to their political opinion.
II. BACKGROUND
[2]
According
to the Applicants’ narrative, they ran a bed and breakfast (B&B) business
in a tourist area of Cuba. They were therefore in contact with
tourists who were interested in the daily lives of Cubans.
[3]
The
principal Applicant Hernandez had travelled to Canada under a
multi-entry Temporary Resident Visa (TRV) on two occasions to visit family. It
was during these trips that she became aware of events in Cuba that were
not reported in the Cuban media, such as the incarceration of certain
dissidents.
[4]
Central
to the Applicants’ claim is the alleged stay of two guests at the B&B: a
Cuban woman and an Italian tourist. The Italian would apparently participate in
conversations Hernandez had with her neighbours about events and what she had
read concerning Cuba while in Canada. He asked
about life from the Cuban perspective including such matters as the use of
ration books and the prohibitions against locals using certain of the beaches
in the tourist area.
[5]
Following
the visit of the Cuban woman and Italian tourist, the Applicants claimed that
State Security members took them in for questioning, searched their home and
confiscated their electronic equipment. Their business license to operate the
B&B was also cancelled.
[6]
The
Applicants thereafter received regular visits from the senior party official,
were taken in for questioning and forced to sign a warning letter restricting
them from talking to anyone about the Cuban state, breach of which could result
in a 3-5 year prison sentence.
[7]
The
Applicants concluded that the Cuban woman who had visited with the Italian
tourist was a state security informant. They also concluded that it would be
best to leave Cuba as they were
now under suspicion.
[8]
Although
the principal Applicant Hernandez had a TRV and her husband was able to obtain
one in February 2010, they needed exit visas. Before these exit visas were
obtained in March 2010, State Security personnel warned them that they should
remain outside Cuba as they were no longer welcome in Cuba. The
Applicants suggest that the exit visas were issued to exile them from Cuba.
[9]
The
Board, in dismissing the refugee claim, found against the Applicants on the
basis of credibility. The Board found both an absence of reliable documentary
evidence and a lack of consistent testimony on the documentary evidence. The
pivotal event of the stay of the Cuban woman and Italian tourist at the B&B
suffered from an absence of reliable corroborative evidence.
[10]
The
Board focused on the evidence of the rent receipts for the Cuban/Italian visit;
the integral inconsistency of the documents both as to dates and amounts. It is
evident that the Applicants’ constantly changing explanations for these
inconsistencies led to the Board’s conclusion that the evidence was fabricated.
[11]
The
Board also noted the absence of any objective evidence that the Applicants had
been labelled as “political” or that they were running a B&B when the
pivotal events of September 2009 occurred.
[12]
The
Board dismissed the claimed fear of arrest upon return to Cuba. The Board
reasoned that the Cuban authorities would not issue an exit visa to
“politically unreliable” persons.
[13]
As
to the Applicants’ claim that, having overstayed their exit visa, they would be
denied entry to Cuba, the Board concluded that they had not even
tried to extend the exit visas.
[14]
Finally,
both at the Board hearing and subsequently, the Applicants claimed that they
would be punished for breach of the exit visa and returning to Cuba and that
Cuban law with respect to “dangerousness” was persecutory in nature. These
arguments were dismissed due to lack of evidence as to being punished for
making a refugee claim in Canada or for being “political” since their
pivotal incident was not credible.
III. ANALYSIS
[15]
The
standard of review of a Board decision grounded in credibility and plausibility
is generally reasonableness (see Dong v Canada (Minister of
Citizenship and Immigration), 2010 FC 55). The assignment of weight and
the interpretation and assessment of evidence is also held to a reasonableness
standard (see N.O.O v Canada (Minister of
Citizenship and Immigration), 2009 FC 1045).
[16]
While
the parties appear to consider “reasonableness” as the standard in respect of
the persecuting nature of Cuban law, I disagree. Whether the Cuban exit laws
which contemplate prosecution and possible imprisonment amount to “persecution”
under s. 96 of the Immigration and Refugee Protection Act (IRPA) or
“cruel and unusual punishment” under s. 97 of IRPA is a matter of a law of
general application, and involves considerations of domestic and international
law. As such, the Board’s conclusion should be assessed on a correctness
standard.
[17]
With
respect to the Board’s credibility finding, it is well settled law that not
only is the finding subject to a reasonableness standard, considerable
deference is owed to the Board as the trier of fact (Khan v Canada (Minister
of Citizenship and Immigration), 2011 FC 1330 at para 30).
[18]
The
Board’s finding is clearly influenced by the Applicants’ continually changing
explanations. The Board is in a superior position to a reviewing court in terms
of observations of the witnesses particularly when confronted with difficult
inconsistencies.
[19]
Concerns
about credibility impact the assessment of documentary evidence or the absence
thereof. The need for corroboration is even more important where credibility is
in issue. The Court is to look at the finding as a whole and in context without
microscopic analysis.
[20]
In
this case the Board’s credibility finding is reasonable – the conclusions
reached were properly open to the Board. The Applicants put in evidence
documents which had errors and discrepancies and the Board found, as it was
entitled to do, that the Applicants’ explanations were not supportable.
[21]
The
circumstances of the errors and inconsistencies went to the root of the
Applicants’ claim. These errors, inconsistencies and the wavering explanations
related specifically to whether the Applicants operated a B&B at the
relevant times, a matter that underpinned the story of the Cuban woman and the
Italian tourist.
[22]
As
to the issue of whether prosecution for a breach of an exit permit is
persecutory, the Applicants have at least two difficulties – firstly, the
Applicants created the breach; secondly, Cuban exit laws have not been found to
be persecutory.
[23]
In
Valentin v Canada (Minister of Employment
and Immigration) (F.C.A.), [1991] 3 FC 390, the Federal Court of Appeal
held that an applicant cannot self-induce a positive claim for refugee status.
This principle was followed in Perez v Canada (Minister of
Citizenship and Immigration), 2010 FC 833, with respect to overstaying
a Cuban exit visa in relation to both IRPA ss. 96 and 97.
[24]
In
the present case, the Board noted the Applicants’ failure to seek an extension
of their exit visas even though it is normal to be able to extend such a visa
for 11 months and possibly even longer.
[25]
In
Galvez v Canada (Minister of Citizenship and Immigration), 2004 FC
1690, this Court upheld the Board’s conclusion that Cuban exit laws themselves
were not persecutory. In the present case, there is no evidence that the law
would be applied to the Applicants in a persecutory manner.
[26]
Therefore,
the Board was correct in its conclusions that the exit laws were not
persecutory and that the Applicants cannot self-induce their refugee claim. The
Board’s conclusion that there was no evidence that the Applicants would be
subject to persecutory application of the laws is reasonable.
IV. CONCLUSION
[27]
For
these reasons, this judicial review will be dismissed. There is no question for
certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed.
“Michael
L. Phelan”
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