TA9-00529

RPD File No. / N° de dossier de la SPR : TA9-00529 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing October 22, 2009 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision November 5, 2009 Date de la décision Panel B. Volpentesta Tribunal Counsel for the Claimant(s) Patricia Wells Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer Agent(e) de tribunal Designated Representative(s) Représentant(e)(s) désigné(e)(s) Counsel for the Minister Conseil du ministre [1] XXXXX XXXXX XXXXX (the "claimant") is a citizen of Cuba and makes a claim for protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1 ALLEGATIONS [2] The claimant alleges the following: [3] The claimant does not like the repressive regime of Cuba. To earn extra money she sold items on the black-market and her husband operated a private XXXXX XXXXX after his regular job. She and her husband attempted to leave Cuba illegally in 2002 and then once again in 2005. The claimant refused to participate in the usual meetings and demonstrations that Cubans normally do. The claimant was watched by neighbours and members of the Committee for the Defence of the Revolution (CDR). [4] The claimant was able to obtain permission to leave Cuba and a visitor visa to Canada when her sister in Canada required an operation and needed assistance. Once in Canada, the claimant requested protection. The claimant's daughter was mistreated at school by teachers and classmates because her mother is in Canada. Her husband lost his job. The claimant now fears she cannot go back to Cuba because she has stayed beyond the time allowed. DETERMINATION [5] I find that the claimant is neither a Convention refugee nor a person in need of protection. My reasons are as follows. ANALYSIS Identity [6] The claimant's oral testimony and documentary evidence establish that she is a citizen of Cuba.2 Section 96 - Convention Refugee Grounds [7] The determinative issue in this section 96 analysis is whether the claimant has a well-founded fear of persecution. That is, whether the harm feared is objectively well-founded and whether it is persecution. [8] The claimant says that after she attempted to leave Cuba in 2002 things changed. She was constantly watched and says her husband lost his job as a result. The claimant believes the government discovered their attempt because her husband lost his job after that. However, the claimant testified that during that attempt they were actually defrauded and their plans fell through. She said that she only told two friends who also wanted to know more since they too were interested in leaving Cuba. Her husband lost his job in 2003, a year after their attempt, but was able to obtain another job two years later. The claimant confirmed that there was not that much opportunity for work in Cuba. The claimant described how in 2000 she had been detained and fined for selling items on the black-market which is illegal in Cuba. The claimant also testified that they stopped going to meetings after this failed attempt in 2002. The claimant attempted to leave Cuba again in 2005. At that time they aborted their plan because they did not trust the people who were arranging the exit. Based on the information above provided by the claimant it is reasonable to conclude that the government did not discover their attempts to leave and that she was being watched because she refused to attend meetings as is required in Cuba. [9] Counsel argues that because the claimant refuses to participate in meetings and demonstrations, and because she has left Cuba for longer than authorized she being persecuted since she is perceived as a being against the revolution. To be considered persecution, the mistreatment suffered or anticipated must be serious3 and a second criterion of persecution is that the harm occurs with repetition or persistence in a systematic way.4 Cumulatively, acts of discrimination may amount to persecution and particularly where there is a denial of access to a means of existence. Denial of employment or access to employment may form the basis of link to persecution in some circumstances. [10] I explored the nature of the harm faced by the claimant to determine how serious, persistent and repetitive the mistreatment was, and whether it was systematic. The claimant said her neighbours were always talking about her and looked upon her with suspicion. There was no serious harm caused by these actions and therefore they are not persecutory. [11] The claimant was detained and fined in 2000 for selling items on the black-market. She knew that this activity was illegal and was processed according to Cuban law. Since Raul Castro took over power in Cuba he has focused efforts on curbing black-market activities they are said to drain 20% of the Cuban economy.5 In this, the claimant fears lawful sanctions that have a valid purpose. [12] The claimant says that her family is suffering because she has remained in Canada. She states that her daughter is being mistreated in school by having to clean the washrooms and her husband was detained when authorities discovered an internet connection; her husband has since lost his job. However, the doctor report states that the claimant's daughter is displaying behaviour disorders and inadaptability at school along with symptoms of depression, anxiety, menstrual disorder, balding, sweaty hands and feet, and sleep alteration. The doctor concludes that these symptoms are typical of a thirteen year old child suffering from the separation from her mother.6 The claimant's husband states in his message to the claimant that he did not expect her trip to Canada and separation to have such a serious effect on their daughter.7 Further, the claimant testified that when her daughter missed class the school would call home for her. While the claimant believes this is an example of more persecution, there was and is no harm caused to her daughter in this scenario and it is also reasonable to conclude that there is a legitimate purpose for the school calling home. From the above it is reasonable to conclude that while the claimant's daughter may be at the unfortunate end of ridicule for a number of reasons, she is not being persecuted. [13] The claimant's husband was detained when authorities discovered an internet connection at his home. As this is illegal in Cuba, there was an investigation for which the husband was detained. The authorities discovered that it was the neighbour's connection and the neighbour was arrested. The claimant's husband was not charged and there was no further consequence for sharing the connection. The authorities told the claimant that he should not travel before there is a hearing into the neighbour's case. The claimant's husband retained his telephone connection and he was recently able to communicate via the phone although the internet connection was terminated. [14] The claimant's husband lost his job. He states that after twenty years in the XXXXX business they threw him out on the street without an explanation.8 The claimant goes on to say that her husband tried to investigate the reason for his dismissal through workmates and discovered that the real reason he was let go was because the claimant left Cuba and remained in Canada. However, there is no information provided as to how his workmates would have access to this information other than by speculation. The claimant's spouse himself states that changes are occurring in Cuba daily and people loosing employment everywhere. From the above it is reasonable to conclude that the claimant's husband is not being persecuted on account of his spouse being in Canada. [15] In contrast to the claimant's belief and speculation we have some facts. The claimant had planned to leave Cuba illegally twice but those efforts were unsuccessful or aborted by the claimant. The claimant tried to legally leave Cuba for Canada in 2007 but the visa was denied by Canadian authorities.9 The claimant was able to obtain permission to leave Cuba in 2008 from the Cuban authorities.10 If the claimant was a person of interest in Cuba it is unlikely she would have been allowed to leave. Cuba is a totalitarian state which highly monitors and controls its citizens.11 If the claimant were perceived as anti-revolutionary and suffering persecution for it, it is unlikely that she would have been given permission to leave. Furthermore, her spouse in Cuba was caught in an illegal activity (i.e. having an internet connection at his home) yet authorities only took his statement and arrested the owner of the connection without further consequence to the claimant's husband. If the family were being persecuted for their belief or for the claimant being in Canada, it is reasonable to expect her husband would have had more difficulty at that time. [16] From the above I find the harm the claimant feared does not amount to persecution. There was no persuasive evidence that the claimant's fundamental rights were being challenged and her future existence was threatened even if considered cumulatively. What the claimant faced was not persecution. Since the harm feared is not persecution the claimant's claim under section 96 fails. [17] The claimant also stated that she is unable to return to Cuba because she has stayed outside of Cuba without proper authority and if she were to return she may be subjected to imprisonment. In this circumstance the claimant fears punishment for contravention of Cuba's laws. These are laws of general application and are in the public domain in Cuba. The punishment for staying outside of Cuba beyond the authorized period and then returning to Cuba without permission could be imprisonment.12 The claimant offered no persuasive evidence that the law would be applied to her differently than any other person who violated the law. The punishment for this act is not repetitive, persistent or extreme and thus cannot be considered persecutory. The law does not differentiate along Convention grounds. The claimant fears prosecution and not persecution. [18] In this case the claimant did not renew or extend her permission while she was in Canada. After eleven months being outside of Cuba, the claimant also faces sanctions. While the claimant did make her claim for protection in Canada well before the eleven months expired, as described above the claimant was not subjected to persecution before entering Canada. Therefore, the claimant cannot now create a cause to fear persecution by freely, without reason, make themselves liable to punishment for violating a law of general application.13 [19] Therefore, I find the claimant is not a Convention refugee and the claim under section 96 of the IRPA fails. The rest of the analysis of this decision will be under section 97 of the IRPA. Section 97 - Persons in Need of Protection [20] The determinative issue in this section 97 analysis is whether the risk to the claimant is a result of the application of a law of general application. [21] Section 97(1)(iii) of the IRPA contemplates that a person who is personally subjected to a risk to their life is not a person in need of protection if that risk is "inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards". [22] The claimant testified that she would be at risk of imprisonment for not returning to Cuba within the allowed time. The claimant knew of the requirement and knew of the penalty for not doing so. There was no persuasive evidence that the punishment was in disregard of accepted international standards. The claimant is at risk of punishment for violating Cuban laws. This is a punishment for a law of general application and section 97(1)(iii) applies. [23] There was no persuasive evidence that the claimant would be subjected to a risk of torture. [24] Therefore, I find the claimant is not a person in need of protection and the claim under section 97 of the IRPA fails. CONCLUSION [25] The claimant does not have a well-founded fear since there is not a serious possibility of persecution, and she would not be subjected personally, on a balance of probabilities, to a risk to life or to a risk of cruel and unusual treatment or punishment, nor a danger of torture, should she return to Cuba. Accordingly, the claimant is neither a Convention refugee nor a person in need of protection. [26] The claim is rejected. (signed) "B. Volpentesta" B. Volpentesta November 5, 2009 Date REFUGEE PROTECTION DIVISION / POLITICAL OPPOSITION / CRIMINAL ACTIVITY / CONVICTION / VISA / EXPIRY / UNLAWFUL ABSENCE / LAW OF GENERAL APPLICATION / FEMALE / NEGATIVE / CUBA 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit R/A-2. Copy of passport received from Citizenship and Immigration Canada (CIC). 3 Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.). 4 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 734. 5 Exhibit C-2. Items 5 and 9. 6 Exhibit C-2. Items 3 and 4. 7 Exhibit C-2. Item 2. E-mail message from spouse dated XXXXX, 2009. 8 Exhibit C-2. Item 2. E-mail message from spouse dated XXXXX, 2009. 9 Exhbit R/A-2. FOSS notes. 10 Exhibit R/A-2, Exit Permit (Permiso) in passport. 11 Exhibit R/A1, item 2.1, Cuba: Country Reports on Human Rights Practices for 2008. United States, Department of State (USDOS). 25 February 2009. 12 Exhibit R/A-1, item 14.1, RIR CUB101911.E. IRB. January 9, 2007. 13 Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA9-00529 RPD File No. :TA9-00529