Docket: IMM-4299-16
Citation:
2017 FC 485
Ottawa, Ontario, May 10, 2017
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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YUNAURYS
TERRERO FUENTES
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Yunaurys Terrero Fuentes seeks judicial review
of a decision of the Refugee Appeal Division [RAD] of the Immigration and
Refugee Board [IRB]. The RAD dismissed Mr. Fuentes’ appeal of a decision of the
Refugee Protection Division [RPD] of the IRB, and confirmed that he is neither
a Convention refugee nor a person in need of protection pursuant to ss 96 and
97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Having found Mr. Fuentes’ oral testimony to be consistent
with the documentary evidence, and the documentary evidence to be genuine, the
RAD unreasonably rejected Mr. Fuentes’ refugee claim on the sole ground
that it was not plausible. The application for judicial review is therefore
allowed.
II.
Background
[3]
The complicated series of events underlying Mr.
Fuentes’ claim for refugee protection was succinctly summarized by the RAD:
[3] In January 2014, the Appellant joined
Cobalt Refinery Co. as an accountant and financial analyst, based in Fort
Saskatchewan. He transferred from the venture’s sister company in Cuba, Moa
Nickel.
[4] In Fort Saskatchewan, the Appellant
joined a “mission” of Cuban nationals led by Delvia Acosta. One of his
colleagues was Esteban Caballero, a close friend and, inadvertently, the alleged
cause of the Appellant’s subsequent problems.
[5] On April 5, 2015, Caballero traveled
back to Cuba per his rotation schedule. He had a meeting with a Commission
representing the Company, the Communist Party and state security. They alleged
that Caballero had violated procedure by becoming engaged to a woman in Canada
whose sister was a Cuban defector. On April 17, 2015, the Mission announced
that Caballero was suspended from the Mission and would not be returning to
Canada.
[6] On June 21, 2015, the Appellant rotated
back to Cuba. He met with Caballero, who told him that he had been transferred
from the Mission and demoted.
[7] On June 25, 2015, the Appellant received
a call from the leader of the Mission, Delvia Acosta, enquiring about
Caballero’s bank account in Canada. Apparently, the account had been cleared
out, and the funds transported to Cuba without her authorization and in
violation of policy. However, the Appellant denied having any information or
participation in that transaction and spoke to Caballero, who stated that bank
withdrawals required Acosta’s coordination and that his money, as far as he
knew, remained in Canada.
[8] The Appellant and Caballero then called
Acosta. Caballero spoke of an agreement he had made with Acosta one month previously,
wherein his funds would be withdrawn via a debit card, which he had provided to
his fiancée’s mother prior to her visit to Canada. These funds would then be
brought back to Cuba. Acosta acknowledged this arrangement had been made and
asked the Appellant to be discreet about it.
[9] On June 26, 2015, Acosta called
Caballero and requested that the cash withdrawn from his account by his
brother-in-law Adolis, be handed to her rather than brought home, so that she
could make deposits into “La Remese”, an obligatory accounting, a sum
calculated from the salaries paid to Cubans working abroad minus deductions for
taxes and expenses, with the balance to be forwarded.
[10] On July 3, 2015, the Appellant was
brought to a Commission meeting where he was questioned about violating money
transfer protocols and of associating with Cuban defectors in Canada. The
Appellant denied wrongdoing. Regarding the money, he explained that the funds
were taken by Caballero’s in-laws and given to Delvia Acosta.
[11] Regarding visits with politically
suspect Cubans, the Appellant acknowledged that he sometimes attended his
friend Caballero’s social engagements, but merely out of respect. The
Commission finished its questioning and said that they would be in touch with
the Appellant later.
[12] On July 5, 2015, the Appellant went to
the airport for his scheduled flight to Canada and found that his ticket had
been cancelled. However, he obtained a rebooking and flew to Toronto, where he
found that the hotel for his overnight stay had also been cancelled.
[13] The Appellant reported for work on July
7, 2015 and tried to meet with Acosta, who stated that she was too busy and the
following day, she told him she was on her way to Cuba.
[14] The Appellant then contacted Acosta’s
assistant, who confirmed that Acosta had cancelled both the ticket and the
hotel. On July 20, 2015, after her return from Cuba, Acosta met with the
Appellant and she told him that everything was fine with the Commission and to
forget about it.
[15] On August 5, 2015, however, the
Appellant received a letter from Caballero revealing that the Appellant was
suspended or about to be suspended, on allegations of improperly withdrawing
and transporting Caballero’s funds, and for showing “ideological deviation”
through socializing with certain Cuban people.
[16] Fearing that his next rotation home
would see him being punished for these transgressions, despite his
explanations, the Appellant decided to defect from the Mission and seek
protection in Canada on August 15, 2015.
[17] The
Appellant has subsequently learned that he has been denounced for abandoning
the Mission, expelled from the Communist Party, as well as being branded a
traitor at a meeting of the Committee for the Defence of the Revolution held in
the presence of his neighbours.
III.
Decision of the RPD
[4]
The RPD heard Mr. Fuentes’ application for
refugee status on April 20, 2016, and dismissed it on June 6, 2016. The RPD’s
primary concern was the implausibility of the alleged arrangement between Ms.
Acosta and Mr. Caballero regarding the withdrawal of Mr. Caballero’s
earnings in Canada and their transfer to Cuba. The RPD also found that the
signature on the letter purporting to be from Mr. Caballero was inconsistent
with the one that appeared on Mr. Caballero’s passport and other documents that
were submitted in support of Mr. Fuentes’ refugee claim. Finally, the RPD
concluded that the term of imprisonment Mr. Fuentes might face if he
returned to Cuba would not be persecutory.
[5]
Mr. Fuentes appealed the RPD’s decision to the
RAD.
IV.
Decision of the RAD
[6]
In a decision dated September 21, 2016, the RAD
dismissed Mr. Fuentes’ appeal and confirmed the decision of the RPD that he is
neither a Convention refugee nor a person in need of protection pursuant to ss
96 and 97 of the IRPA. This is the decision that is challenged in the present
application for judicial review.
[7]
The RAD agreed with the RPD’s implausibility
findings, and also noted that there was no evidentiary basis for the alleged
withdrawal of funds from Mr. Caballero’s bank account. The RAD described this
transaction as “the most significant aspect” of
the claim. However, the RAD disagreed with the RPD’s finding that the documents
submitted by Mr. Fuentes in support of his claim were fraudulent. Instead, the
RAD characterized the documents as “not helpful”.
The RAD confirmed that the treatment Mr. Fuentes might face if he returned to
Cuba would not amount to persecution.
V.
Issues
[8]
This application for judicial review raises the
following issues:
A.
Did the RAD reasonably reject Mr. Fuentes’
refugee claim on the ground that it was not plausible?
B.
Did the RAD reasonably determine that the
treatment Mr. Fuentes might face if he returned to Cuba would not amount to
persecution?
VI.
Analysis
[9]
The RAD’s assessment of the evidentiary record involves
questions of mixed fact and law, and is subject to review by this Court against
the standard of reasonableness (Canada (Citizenship and Immigration) v
Huruglica, 2016 FCA 93 at para 35). The Court will intervene only if the
decision falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[10]
The RAD’s determination of whether a law of
general application is persecutory is subject to review by this Court against
the standard of correctness (Gonzalez Salcedo v Canada (Citizenship and
Immigration), 2014 FC 822 at para 20 [Gonzalez]).
A.
Did the RAD reasonably reject Mr. Fuentes’
refugee claim on the ground that it was not plausible?
[11]
Mr. Fuentes emphasizes that the RAD found his
testimony to be detailed and consistent with the documents he presented. He
maintains that a refugee claimant’s testimony is presumed to be true unless there is
valid reason to doubt its truthfulness (citing Maldonado v Canada (Employment
and Immigration), [1980] 2 FC 302 (CA)).
[12]
Mr. Fuentes says that a
refugee claim may be
rejected solely on the ground of implausibility only where it is clear
that the events are unlikely to have occurred in the manner alleged (citing Aguilar
Zacarias v Canada (Citizenship and Immigration), 2012 FC 1155 at paras
10-11).
[13]
According to the RAD:
[32] The most significant concern […] is the
implausibility of the supposed arrangement between Delvia Acosta and Esteban
Caballero, which would see earnings withdrawn in Canada by a debit card and
then carried to Cuba. This scheme was allegedly confirmed to the claimant over
the phone by Acosta herself.
[14]
The Minister of Citizenship and Immigration
argues that this key finding was reasonable, and was based on inferences that
were supported by the record: (a) Cuba has enacted strict financial controls on
workers who earn foreign wages; (b) employers, including international
businesses and organizations, are generally prohibited from contracting with or
paying workers directly; and (c) there was no evidence that transporting cash
to Cuba is routinely done by Cuban workers in Canada. The Minister says that
all of the RAD’s findings were reasonable, rational and based on evidence found
in the record, including Mr. Fuentes’ failure to provide corroborating evidence
of the withdrawal of funds from Mr. Caballero’s Canadian bank account.
[15]
I agree with Mr. Fuentes that only one of the
three inferences underlying the RAD’s key finding of implausibility is clearly
supported by the record. There is no dispute that Cuba has enacted strict
financial controls on workers who earn foreign wages. The basis for the
inference that employers, including international businesses and organizations,
are generally prohibited from contracting with or paying workers directly was
the U.S. Department of State’s Cuba 2014 Human Rights Report. However,
the passage cited relates to the conduct of foreign companies in Cuba, not
Cuban companies in other countries. The absence of evidence that Cuban workers
in Canada routinely transport cash to Cuba was inconclusive, and did not
contradict Mr. Fuentes’ account of the events.
[16]
The RAD confirmed the RPD’s finding that it made
no sense for Mr. Fuentes to continue working at Cobalt after his airline
ticket, hotel reservation and rental car booking had allegedly been cancelled.
But his evidence was that the Cuban authorities had not yet made a decision
regarding his future when he returned to Fort Saskatchewan. Mr. Fuentes notes
that Mr. Caballero did not face any consequences for his actions until he
was rotated back to Cuba in the normal course. One of the documents Mr. Fuentes
presented in support of his claim was a copy of the cancelled airline ticket.
[17]
The RAD also confirmed the RPD’s finding that
Mr. Fuentes was already in Cuba when Ms. Acosta discovered that Mr. Caballero’s
Canadian bank account had been emptied, and this should have been sufficient to
exonerate Mr. Fuentes in the eyes of Cuban authorities. But Ms. Acosta
made her discovery in early June 2015, and Mr. Fuentes did not return to Cuba
until July 2015.
[18]
Another troubling aspect of the RAD’s decision
was its treatment of the documentary evidence. The RAD held as follows:
[34] The RAD […] does, however, concur with
the Appellant that the documents themselves cannot be said to be fraudulent.
However, it is their probative value, which the RPD was assessing. In this
regard, the RAD agrees that they do not establish the material allegations of
the claim. Although corroborative evidence is not an absolute requirement, when
the allegations are called into question, it is all the more significant to
provide some corroboration as the onus is on the Appellant to establish his
allegations. The foregoing corroborative evidence is not helpful in doing so.
[19]
Mr. Fuentes’ documentary evidence included
statements from his wife and Mr. Caballero confirming that he was under
investigation in Cuba for his alleged involvement in the improper transfer of
Mr. Caballero’s funds, and that he would be at risk if he returned to that
country. It is difficult to understand how the RAD could accept this
documentary evidence as genuine, but conclude that it was “not helpful” in establishing Mr. Fuentes’ claim.
[20]
There are aspects of Mr. Fuentes’ narrative that
are puzzling, and questions remain regarding the transfer of Mr. Caballero’s
earnings from Canada to Cuba, Ms. Acosta’s role in the transactions, and Mr.
Fuentes’ continued employment at Cobalt despite being under suspicion by Cuban
authorities. However, I am not persuaded that these are sufficient to render
Mr. Fuentes’ narrative clearly implausible. Having found Mr. Fuentes’ oral
testimony to be consistent with the documentary evidence, and the documentary
evidence to be genuine, the RAD unreasonably rejected Mr. Fuentes’ refugee
claim on the sole ground that it was not plausible.
B.
Did the RAD reasonably determine that the
treatment Mr. Fuentes might face if he returned to Cuba would not amount to
persecution?
[21]
In light of the conclusion above, it is not
necessary to engage in a detailed analysis of the RAD’s determination that the
treatment Mr. Fuentes might face if he returned to Cuba would not amount to
persecution. I note, however, that Justice Michael Phelan considered Article
135 of the Cuban Penal Code in Gonzalez and held at paragraph 26:
[26] In conclusion, the potential punishment
under Article 135 is not persecutory. It cannot be characterized as solely to
punish political dissent as it applies to diplomats who fail to return to Cuba
for whatever reason. It would be naïve to think that political opinions do not
play a role but there are other motives possible for refusal to return (i.e.
economic advantage, lifestyles) which are also captured by the law. There is no
evidence in this case of disproportionate application of that law to political
dissidents.
[22]
Mr. Fuentes is not a diplomat. He is an
accountant and financial analyst with a Cuban state-owned metal extraction
company. This may be a relevant distinction, but it is one best left to the RAD
when it reconsiders Mr. Fuentes’ appeal of the RPD’s decision.
VII.
Conclusion
[23]
The application for judicial review is allowed,
and the matter is remitted to a differently-constituted panel of the RAD for
redetermination. Neither party proposed that a question be certified for
appeal, and none arises in this case.
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