MB4-01100

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : MB4-01100 MB4-01101 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Québec Appel instruit à Date of decision July 8th, 2014 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the persons who are the subject of the appeal Me Mabel E. Fraser Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] Mr. XXXX XXXX XXXX XXXX, who is the Principal Appellant, and his wife, Ms. XXXX XXXX XXXX, are citizens of Cuba. They are appealing a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The Appellants have not submitted new evidence and are not seeking an oral hearing. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that Mr. XXXX XXXX XXXX XXXX, and Ms. XXXX XXXX XXXX are neither "Convention refugees" pursuant to Section 96 of IRPA nor persons in need of protection pursuant to s. 97 of IRPA. BACKGROUND [3] The Appellants allege before the RPD that they fear return to Cuba because of the cumulative effects of years of enduring hardships, discrimination, maltreatment and government pressure and punishments. When examined together the Appellants allege this treatment, at the hands of the Cuban government, which should be viewed as a totalitarian police state, reaches the level of persecution. [4] The Principal Appellant is now 70 years old and Ms. XXXX is 67. They have lived in the city of XXXX XXXX (Population Approximately 25,000) for most of their lives and both note membership in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX for XXXX XXXX from the mid-sixties (RPD Record, p. 130 and p. 144). The Principal Appellant has been retired with a meager pension from 2003 when he turned 60 while Ms. XXXX lists XXXX XXXX as her activity during the same period. The Appellants allege that much of their income comes from remittances from various family members overseas. [5] The Appellants allege that their lives have been traumatized by the allegation that they were 'bad revolutionaries' and because many of their family members have left Cuba. In one case - Ms. XXXX brother - this individual allegedly spent time in jail for anti-revolutionary activities. The Appellants have individually traveled outside of Cuba. Ms. XXXX travelled to Canada and the US while the Principal Appellant has also travelled to the US. The Appellants waited for six months before submitting a protection claim after arriving together in Canada to visit Ms. XXXX son. [6] After these protection claims were submitted in December 2013, the RPD denied these claims in a decision dated March 11, 2014. This decision was appealed by submitting a Notice of Appeal, which was received by the IRB on March 19, 2014. SUBMISSIONS [7] The Appellants argue that the RPD erred in its decision because it did not evaluate Cuban country conditions in a way that would allow it to properly understand the situation faced by the Appellants. The Appellants also argue that the RPD did not effectively evaluate the claim such that it came to a mistaken conclusion that the Appellants were not 'dissidents' as understood by the Cuban government. [8] The RPD was also viewed as having erred with respect to the lengths that the Appellants had to go to hold onto their jobs and what they had to do to secure opportunities to travel overseas. The Appellants also identify an error with respect to the RPD's decision because it does not recognize that by making a refugee claim in Canada, the Appellants have created a risk that they will be targeted by government officials when they return to Cuba. STANDARD OF REVIEW [9] With respect to the RPD's decision, which is based on an assessment of the testimony and evidence to conclude that the Appellants would not face persecution if they were to return to Cuba, I conclude that this is a question of mixed fact and law and this attracts a 'reasonableness' standard of review (Iyamuremye v. M.C.I. (2014) FC 494). [10] My objective is therefore to review the RPD's decision for 'reasonableness' which is defined in the jurisprudence as "...concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". This understanding flows from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. ANALYSIS OF THE MERITS OF THE APPEAL Issue 1: Did the Board err by ineffectively understanding country conditions? [11] The RPD did not specifically address the many problems with Cuba as a political regime. I do not see that the RPD denies that there is suppression of dissent. Nor does the RPD refute the fact that as a socialist system there are mechanisms of social control which are coercive, which, in some cases, must be viewed as persecution. The fact is that, with the revolution that brought Mr. Fidel Castro to power, the ideology of socialism has been imposed on those who would not otherwise accept it. In such a system the state is tasked with providing for the welfare of the people and relative to other countries in the developing world, Cuba has been relatively successful in providing for the general material and health needs of its general population. [12] Of course, to many the totalitarian nature of the Cuban state must be confronted and/or escaped. At the same time it is the case that all regime systems have mechanisms of social control and incentives to conform. In the case of Cuba many such instruments and activities designed to maintain order and ensure the preservation of the existing system transcend what is accepted in mainstream western understandings of human rights as embodied in various instruments of the United Nations. Regardless, large numbers in Cuba accept socialism, to a greater or lesser extent, as the organizing principle of society, economy and state. In this case the RPD must determine where on a continuum the Appellants fall in order to assess their claims for protection. Have they accepted the system and its legitimacy as might be seen from their participation in the CDR or have they been cowed by fear of persecution such that each day is characterized by fear and misery as they are forced to appear to have accepted the fate they were dealt by being born and raised in Cuba. [13] In this case the RPD accepts the story itself, but argues that the Appellants' understanding of events might be embellished or misrepresented. According to the RPD: "This is not to say that I accept that you established ever bit and piece of your story - because part of what you declared relates to interpretations or perceptions - but I do hold that the main allegations that you made have been credibly established" (RPD Decision, p. 2). [14] I must conclude that in the case of Cuba it is the specific circumstance of the individuals who are claiming protection which must be evaluated. Being a citizen of Cuba alone is not in itself sufficient to sustain a claim of refugee protection in Canada. Issue 2: Did the Board err by not recognizing that the Appellants are viewed as dissidents by the Cuban government and have faced persecution level treatment in the past? [15] The RPD extensively questioned the Appellants to evaluate the degree to which Cuban mechanisms of social order impacted them in a fashion that should be viewed as persecution. The conclusion of the RPD is that although the events described occurred, the Appellants modified their behaviour and accepted their situation, if not embraced it. They lived their lives in a manner which would not constitute treatment of a level of severity that could be described as persecution. [16] To take an example, with respect to public participation in 'socialist' activities the RPD views this as a trade-off that the Appellants accepted in order to secure benefits from the Cuban system of the socialized distribution of goods and services. According to the RPD, In the case of Mr. XXXX, he and his family were ostracized because your brother left for the U.S.A. in the early 1960s. This led to difficulties finding a job and studying. It also brought you to orient your work towards working on XXXX XXXX, which you did for a fair number of years before you accepted to "integrate the system" - it is the term you used -- and do what was required of you to be able to obtain some advantages - for example, obtaining a watch, a bicycle, a TV and such other material goods in exchange for participating in political marches, volunteer jobs, etc. Integrating in the system like this allowed you to become in the good graces of the revolution, which in tum allowed you to travel to Angola in 1979, which then in turn allowed you to obtain a relatively good position within a government-owned company which you occupied for some 15 years (RPD Decision, p. 3). [17] In response, the Appellants stress the coercive and psychologically demeaning nature of this trade-off to reach a conclusion that by its nature such incentives to conform, along with the implications of not conforming, constitute persecution. According to the Appellants, Remember that Mr. XXXX was forced to participate in political marches in order to not lose his job. A Cuban law, the "Dangerousness Law" in fact provides that failing to attend a pro-government march is a dangerous activity: "The most Orwellian provision of Cuba's criminal code, this charge allows authorities to imprison individuals before they have committed a crime, on the suspicion that they might commit one in the future. Their "dangerous" activities included failing to attend pro-government rallies, not belonging to official party organizations, and simply being unemployed." (Cuba - A Way Forward / Human Rights Watch, 2010, P-7) (Submissions for the RAD, pp. 8-9). [18] The Appellants are also drawing on a logic that persecution must be seen in the fact that they did not receive their fair share of state allocated benefits because they were targeted as dissidents. According to the Appellants, The appellant Mr. XXXX did not have the luxury of abstaining from cooperating with the State in some way. That is why he "integrated the system". He had to "integrate the system" and he had to participate in political marches. First to find a job, and then to keep it. Not doing so would have branded him a dissident. But even though he "integrated the system" and even though he "participated in political marches", the State still did not favour him, the State never increased his salary, and the Police and CDR visited and monitored and searched their home without a justified reason. Why? Because of Mr. XXXX background, his family relations in the USA, his wife's background, his wife's family relations in Canada, his wife's brother's 20-year sentence for propaganda against the State (Submissions for the RAD, p. 12). [19] The problem with this argument is how to evaluate such elements as being denied a raise or being forced to participate in rallies in order to sustain the provision of state benefits. In this case the Principal Appellant alleges that he lost his preferable XXXX XXXX XXXX in the mid-nineties (6 months after his son in law left Cuba) because he was viewed as "not sympathetic to communism" and was left doing 'little work' on the 'graveyard shift' and making less money prior to retirement at age 60 (Oral Hearing at 1:24-6 minutes). [20] I must conclude again that the RPD must weigh the life experience of the Appellants to assess whether the severity of the trade-offs and treatment meets Canada's legislated understanding of what constitutes a convention refugee. [21] In this case the thrust of the RPD decision is that given the various benefits received by the Appellants from the state (which allocates all resources) and the absence of major punishments as opposed to the alleged continual harassment, the Appellants cannot be viewed has having suffered persecution level treatment. This would be reserved for those individuals identified as 'dissidents'. According to the RPD: I come to this conclusion after taking into consideration numerous elements of your personal circumstances. For example, your brother's family was allowed to leave the country - which runs contrary to what the government practices when it wishes to punish dissenters. They will either refuse them a passport - or more importantly in the past - the permission to leave the country." However, your niece and your sister-in-law were entitled to leave the country. Moreover, your niece was allowed to go back to Cuba to visit her mother while she waited to leave the country. You yourself were permitted to leave the country in 2000. You were also permitted to leave the country in 2005. Your son has been able to travel to and from Cuba since he migrated on numerous occasions. Both you and your husband were entitled to obtain passports. To me, these are all indications that the authorities do not consider you dissidents (RPD Decision, p. 7). [22] The RPD is also examining the documentation and notes that while the government's enforcement of socialist policy is possibly waning of late it is not clear that Cuba has 'turned the corner' (RPD Decision, p. 8). The conclusion is that, in the specific circumstance of the Appellants, which is to say retired general worker pensioners (and recipients of remittances) living in a small town, this implies that going forward there is not a serious possibility of persecution (RPD Decision, p. 11). I find this argument reasonable. Issue 3: Did the Board err by concluding that the Appellants would not be viewed as failed asylum seekers? [23] The RPD examines the travel of the Appellants and concludes that the repression they faced in Cuba was not such that it forced them to seek protection overseas. This is viewed as evidence that the situation the Appellants faced was not of a level of severity consistent with persecution. [24] With respect to the Principal Appellant, this argument with respect to travel is not developed in the RPD decision and I must agree with the Appellants that a trip to Angola in 1979 did not constitute an opportunity to exit Cuba for the Principal Appellant. [25] The situation facing Ms. XXXX is not so clear cut. Ms. XXXX traveled to Canada and the US in 2000 and to Canada in 2005. This is significant because for a Cuban in the US, given the Cuban Adjustment Act, simply wanting to stay is sufficient to secure a permanent status in the US. With respect to Canada, our refugee system has been historically liberal by any criteria and it is hard to imagine that Ms. XXXX, whose son left Cuba in 1995 and was allegedly visiting Cuba annually (Oral Hearing at 1:03-4 minutes), would not be aware of Canada's refugee system. [26] Ms. XXXX argues that she had a sick father and was forced to return in 2000 and with respect to 2005, she was needed by her daughter and husband (RPD Record, p. 52). The RPD cannot accept this interpretation and concludes that because Ms. XXXX returned to Cuba on these occasions this indicates that the situation faced by her was not of an order of severity which would constitute persecution (RPD Decision, p. 7). [27] On this issue I find it reasonable for the RPD to reach this conclusion. The Appellants was, after all, meeting with her brother in the US and her son in Canada and it is hard to imagine that if the situation were at persecution levels of severity they would not have ensured that she did not return to Cuba. I would add that in this case the Appellants waited 6 months before making a refugee claim in Canada on this trip which implies they had not ruled out a return to Cuba which also implies that the situation is not at a persecution level of severity there. [28] The final issue relates to the question of return and on this question I find the RPD has reached a reasonable conclusion that the Appellants would have little difficulty returning. The fact is that Cuba would not likely have a real interest in the Appellants given that they have been retired for many years. The Appellants retain the keys to their property (Oral Hearing at 1:36 minutes) which implies Cuban officials have not confiscated their property and by extension, expect them to return at some point. I note that Cuba has eliminated the need for an exit visa for much of the population and at this point the problem for Cubans is not so much leaving but finding a country which will give them an entry visa. [29] Although Ms. XXXX testifies that she does not know of others in her village who have families that have traveled overseas (Oral Hearing at 55 minutes), the fact is that at this point large numbers of Cuban have relations in the US and elsewhere such that I find it reasonable for the RPD to conclude that "there are so many people who migrate from Cuba that it no longer comes with any stigma attached like it would have in the past" (RPD Decision, p. 8). [30] When this is coupled with the fact that Canada's refugee system is confidential, I must conclude that the RPD can reasonably conclude that the Appellants might return to Cuba without authorities becoming aware that they made a refugee claim. In addition, given that they may remain out of the country until XXXX 2015, the Appellants need not return soon to Cuba in any case. [31] Overall, in terms of the logic of the RPD decision coupled with the evidence surveyed, I conclude that the RPD's decision "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". REMEDIES [32] For all these reasons, I confirm the determination of the RPD, namely, that Mr. XXXX XXXX XXXX XXXX and Ms. XXXX XXXX XXXX are neither "Convention refugees" nor "persons in need of protection". Therefore, the appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher July 8th, 2014 Date /mar 2 RAD File No. / N° de dossier de la SAR : MB4-01100 MB4-01101 3 N° de dossier de la SAR/RAD File No.: MB4-01100 MB4-01101