Docket: IMM-7390-10
Citation: 2011 FC 912
Ottawa, Ontario, July 22,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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VICTOR LABRADOR ALFARO
LOBELIA ESTER VALERINO AVILA VICTOR
MANUEL LABRADOR VALERINO JUAN CARLOS LABRADOR
VALERINO
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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
[1]
This
application for judicial review arises from a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board) dated
November 23, 2010, which determined that the applicants were neither Convention
refugees nor persons in need of protection. For the reasons that follow, the
application is granted.
The Facts
[2]
The
principal applicant, (the applicant) Victor Labrador Alfaro, his wife Lobelia
Ester Valerino Avila and their children Victor Manuel Labrador Valerino and
Juan Carlos Labrador Valerino are citizens of Cuba.
[3]
The
applicant came to Canada in December 2002 as a temporary foreign worker.
He worked as an engineer for a joint venture between a company of the Cuban
government and a private Canadian company. His family joined him in Canada in 2003. The
female applicant, a university professor, took a five-year leave of absence at
that time. In 2006, the applicant was promoted to the position of Assistant
Project Manager, the second most senior position in the joint-venture company.
[4]
In
August 2007, a year prior to the expiry of the applicant’s exit visa from Cuba,
Roman Balan, the applicant’s manager, decided to stay in Canada permanently.
The evidence before the Board was that Balan and the applicant were close
friends. The Cuban government subsequently sent a letter to the applicant
describing Balan as a thief and a traitor. When the applicant expressed
concerns about the letter to his new supervisor, his supervisor accused him of
having ideological problems.
[5]
Shortly
thereafter, the female applicant was informed that her leave of absence was
being terminated early. She was told to return to work in Cuba immediately
or else she would be fired.
[6]
In
March 2008, the applicant testified as a witness at another colleague’s refugee
hearing. At his own hearing the applicant testified that he suspects that his
new supervisor somehow learned of this testimony, but this was rejected as
speculative.
[7]
On
June 16, 2008 after having been in Canada for close to eight
years, the applicant spoke with a human resources manager at his company and
told him that he wanted to immigrate to Canada. The human
resources manager told him to inform his supervisor, which he did. When the
applicant told his supervisor that he wanted to immigrate to Canada, his
supervisor fired him and called him a traitor. The applicant was given a week
to vacate the company house in which he and his family lived and was told to
return his company car immediately. The applicants’ home in Cuba, which they
had been renting out while they were abroad, was also seized by the government.
The applicant was required to engage counsel and commence legal proceedings to
recover severance pay.
[8]
On
August 11, 2008, the date of the expiry of his exit visa, the applicant made
his claim for refugee protection, alleging a fear of persecution based on
imputed political opinion and membership in a particular social group.
The Decision Under
Review
[9]
The
Board found that the principal applicant and the female applicant were credible
witnesses, but rejected their claim based on a lack of objective risk of
persecution or that they would be considered dissidents because of their
attempt to immigrate to Canada. The Board found that the applicants had not
been persecuted or labelled as dissidents in the past. The Board considered
the applicant’s claim that his employer learned of his involvement in his
colleague’s refugee hearing, but rejected it on the basis that refugee
proceedings in Canada are held in camera. It noted evidence of the
Cuban government’s dissatisfaction with its citizens who immigrate to Canada, but found
that it did not establish a direct threat to the applicants.
[10]
The
Board also rejected the applicants’ claim that their treatment around the time
they initiated their refugee claim was persecutory. Specifically, the Board found
that there was nothing persecutory about the demand that the applicant return
to Cuba to renew his
permit, noting that the applicant had been highly trusted by his government. The
Board also found that there was nothing persecutory about the termination of
the female applicant’s and principle applicant’s employment, the requirement
that the company car be returned and the company house be vacated, or the
seizure of their house in Cuba. Rather, the Board found that these
events were the consequence of a decision to emigrate from a communist country,
where employment and housing are government-run.
[11]
The
Board found that the applicants had violated Cuba’s exit laws,
but that the violation of those laws did not establish a need for refugee
protection. In making this finding, the Board relied on Valentin v Canada
(Minister of Employment and Immigration), [1991] 3 FC 390, and Castaneda
v Canada (Minister of
Employment and Immigration) [1993] FCJ No 1090. The Board also found that
those who violate Cuba’s exit laws may be considered dissidents,
accepted that the applicants would face social isolation when returned to Cuba, but found
that this isolation and discrimination fell short of persecution.
[12]
The
Board noted that the applicants did not claim that they could be killed if they
returned to Cuba, and found
that they were not persons in need of protection.
The Issues
[13]
The
applicants contend that the Board applied the incorrect test in assessing their
claim and ignored relevant evidence. Whether the Board applied the correct
legal test is a question of law and is therefore reviewable on the correctness
standard. The weight accorded the evidence and determinations as to whether
that evidence meets the burden of proof is entitled to deference and is
assessed on a reasonableness standard.
[14]
The
Court of Appeal has made clear that refugee claims cannot be self-induced
simply by reason of the consequences that might subsequently befall the
claimant for over-staying an exit visa issued by the claimant’s home country on
return: Valentin. The fact that the applicant is in breach of the exit
visa and may in consequence suffer penalties of some form does not end the
matter. There remains an obligation, well-established in the jurisprudence, on
the Board to examine “… the question whether there was a risk of severe or
extrajudicial treatment in the hands of a repressive regime as a result of his
alleged exit from the country and a failed refugee claim.”: Donboli v Canada (Minister of
Citizenship and Immigration) 2003 FC 883 at para 6, per Justice Eleanor
Dawson, now of the Court of Appeal.
[15]
The
Board did not, in this case, address this latter component of the test. While
there was some analysis of the immediate consequences to the applicant while in
Canada, there was no prospective analysis of the issues to be faced on return
to Cuba. The focus
was largely retrospective. The reasons state:
… In the case of the principal claimant
he has been out of Cuba for 8 years and his permit
has been renewed every year without question. He has also travelled extensively
to foreign countries with his work. This evidence suggests that the principal
claimant has been highly trusted by his Cuban government employers.
… According to the travel records
provided as part the [sic] PIFs of the principal and associate claimant’s, it
appears that the claimant’s family was also permitted to travel to and exit
Cuba regularly. If the claimant has been branded as dissidents or even if there
were serious suspicions on the part of Cuban authorities, the panel finds, on a
balance of probabilities that authorities would not have permitted the family
to travel so frequently to and from Canada.
[16]
It
is axiomatic that the absence of past persecution is not necessary to establish
a Convention claim, moreover, the perspective of refugee law is forward
looking: Adjei v Canada (Minister of
Citizenship and Immigration) [1989] 2 FC
680. The Board found that the applicant was a “highly trusted” employee of the
Cuban government, who had been labelled a traitor prior to the expiry of his
exit visa and there is no doubt that the reaction of the Cuban government was
swift and harsh, both in terms of the consequences to the applicant in Canada and in Cuba. It is in
this context, taking into account the applicant’s history, position and profile
that the analysis of extrajudicial consequences is framed and takes on added
importance. Again, reverting to Justice Dawson’s comment in Donboli;
…However, where a proper evidentiary
basis exists it is necessary to consider whether excessive or extra-judicial
punishment for an illegal exit could constitute a reasonable basis for a
well-founded fear of persecution.
[17]
The
facts as found by the Board constitute a proper evidentiary basis to warrant
such inquiry.
[18]
The
case of Perez v Canada (Minister of
Citizenship and Immigration), 2010 FC 833 is instructive. There, after
noting that the applicants could not induce their own need for protection under
section 97 of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA)
by voluntarily breaching a condition of their exit visa, Justice Judith Snider
reviewed the facts as found by the Board:
Moreover, it is far from clear that the
Applicant will be charged and convicted under the applicable law. The
documentary evidence demonstrates that the Applicant could still apply for a
special re-entry permit to return to Cuba.
There is no evidence that the Applicant would, with such a permit, be the
subject of prosecution under Cuban laws. The documentary evidence contains not
a single reference to a similarly-situated person being imprisoned pursuant to
this law. On the facts before me, the allegation of imprisonment is mere
speculation. There is simply insufficient evidence for me to find that the
Applicant's fear of imprisonment is well-founded.
I conclude that the Board was correct to
conclude that the risk of imprisonment in Cuba upon her return did not amount to
persecution under s. 96, or risk of cruel and unusual treatment under s. 97.
[19]
Justice
Snider then concluded, in my respectful view, consistent with the antecedent
jurisprudence in Valentin, Castaneda and Donboli, that:
… it is still possible that the Applicant
could have satisfied the Board that she would suffer persecution - beyond a
speculative prison term - upon her return to Cuba. The Applicant does not dispute the Board's
findings that her treatment prior to leaving Cuba was not persecution. However, she
submits that the Board erred by failing to have regard to the evidence that
relates to the time after she left Cuba
…
[20]
The
contrast between Perez and the case before this Court is marked. The
evidentiary foundation referred to by both Justices Dawson and Snider existed
in this case. The evidence before the Board included the following facts:
i.
The
applicant and Balan were friends.
ii.
That
subsequent to Balan’s defection the applicant received a letter dated September 2, 2007 from the Cuban Ministry of Basic
Industry which provided,
Always it is difficult to face the
betrayal from a friend and even more when that person was a member and Team
Leader. It has not been easy for you neither has been for the comrades of the
Ministry.
There are mixed feelings of wrath and
rejection. There are people who feel like wanting to use violence and it is sad
for that person has been reduced to a humiliated position as a betrayer deterred
neglecting all what he has prepared for and it always deserves our maximum
delivery and most of the times it is not enough.
However, today is a day to work, to
continue, to be patience and wait and that merely pays back to the traitors,
stealers and cowards.
iii.
Any
reasonable interpretation of that letter would include the inference that Balan
would suffer severe punishment, as would any other defector.
iv.
The
applicant testified that he expressed his disapproval and objection to the
letter to his immediate supervisor, he became angry and accused the applicant
of having “ideological problems”. It should be recalled that the Board found
the applicant to be truthful and candid in his testimony.
v.
After the
applicant advised, in a very transparent and direct way of this desire to
immigrate to Canada. Yet he was immediately fired
and deemed a traitor and accused of having committed treason.
This language is found in a letter memorandum from the applicants’ Cuban
superior in Canada and head of the Canadian
operations.
[21]
Treason and traitor
are strong words with significant consequences. The implications arising from
the use of those words, when directed to a trusted member of a government
enterprise bear directly on, and reinforce the importance of, the obligation to
examine the nature of consequences of the breach of the exit visa outlined in Donboli.
Similarly, in Valentin, the Court examined both the penal and non-penal
sanctions. In Valentin at paragraph 9 the Court of Appeal did not
preclude the possibility that exit laws may, in the context of their particular
application, be persecutory. In considering the relationship between the
consequences and violating the criminal law of the home country and a claim for
refugee status, the Court said:
In my opinion, a provision such as
section 109 of the Czech Criminal Code can have a determining effect on the
granting of refugee status only in an appropriate context. This will occur in
cases where the provision, either in itself or in the manner in which it is
applied, is likely to add to the series of discriminatory measures to which a
claimant has been subjected for a reason provided in the Convention, so that
persecution may be found in the general way in which he is treated by his
country…
[22]
Nor
does the fact that the law may be one of general application end the inquiry. Where
the punishment or consequences are completely disproportionate to the objective
of the law, it may be persecutory, as the Court of Appeal noted in Cheung v Canada, [1993] 2 FC
314:
… if the punishment or treatment under a
law of general application is so Draconian as to be completely disproportionate
to the objective of the law, it may be viewed as persecutory. This is so
regardless of whether the intent of the punishment or treatment is persecution.
Cloaking persecution with a veneer of legality does not render it less
persecutory.
[23]
The
Court in Castaneda, found that the Board failed to consider elements of
extrajudicial punishment beyond the risk of imprisonment, and that the Board’s
failure to do so was an erroneous application of Valentin. The critical
aspect of Justice Simon Noel’s reasoning in Castaneda is:
However, as I read the Valentin
decision, the isolated nature of the sentence and the lack of direct
relationship between the sentence and the offender’s political opinion were
determinative factors in the minds of the Appeal justices. Here, the evidence
of repercussions over and beyond the statutory sentence suggests an element of
repetition and relentlessness in the manner in which the Cuban authorities
treat the Applicant’s family as well as a direct link between the Applicant’s
act of defiance and the treatment afforded to his family…
[24]
In
the case before the Board, there was evidence of consequences that arguably met
the criteria articulated in Castaneda and the failure to examine these
collateral consequences, as required, is an error of law.
[25]
The
second ground upon which this application is granted is the failure of the
Board to consider the claim as a sur place claim. The UNHCR Handbook
on Procedures and Criteria for Determining Refugee Status describes two
situations in which a sur place claim may arise. The first, due to a
change in circumstances in the country of origin while the claimant is abroad,
is not germane. The second circumstance however, is:
A person may become a refugee “sur place”
as a result of this own actions, such as associating with refugees already
recognized, or expressing his political views in his country of residence.
Whether such actions are sufficient to justify a well-founded fear of
persecution must be determined by a careful examination of the circumstances.
Regard should be had in particular to whether such actions may have come to the
notice of the authorities of the person’s country of origin and how they are
likely to be viewed by those authorities.
[26]
The
Board framed its analysis of the case entirely in the context of breach of the
exit laws. However, as noted on the evidence before the Board, the events that
precipitated the claim were not the overstay of the exit visa, which still had
over two month remaining; rather, the events that precipitated the reaction of
the Cuban government and the applicants’ claim arose prior to the expiry of the
visa. It is true that given the passage of time, the applicant became in
breach of his visa, but the catalyst for the claim for protection, according to
the evidence, was the letter from the Cuban government. For this reason, the
claim requires analysis both as a sur place claim and as a breach of
exit visa case.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is granted.
2.
The
decision of the Board is set aside and the matter remitted to the Refugee
Protection Division of the Immigration Refugee Board for reconsideration before
a different member of the Board.
3.
No
question arises for certification.
"Donald
J. Rennie"
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