MB4-02156

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 : MB4-02156 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision December 12, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is 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 I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a Cuban citizen, is appealing against the decision of the Refugee Protection Division (RPD). He argues that the latter committed a patently unreasonable error in concluding that there would be no probability that he would be subjected to a risk to his life or to a risk of cruel and unusual treatment, because it did not take into consideration certain documents submitted into evidence. He further argues that the RPD committed an unreasonable error in concluding that articles 135.1 and 135.2 of the penal code of Cuba are not usually enforced and in incorrectly applying the decision in Valentin. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal, sets aside the RPD's determination and substitutes the determination that, in its opinion, should have been made, namely that XXXX XXXX XXXX is a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGRAOUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form) that he signed on March 7, 2014, the appellant states that he is a Spanish-speaking Cuban citizen, born on XXXX XXXX, 1980, and that his mother and brother were living in Cuba at that time.1 [4] In his BOC Form, the appellant states that his problems began when he was working for the XXXX youth club as a XXXX XXXX teacher between 1999 and 2001. He states that the director general of the club, XXXX XXXX XXXX, his superior, reprimanded him and his colleagues and called them counter-revolutionaries because they complained verbally and in writing about their working conditions.2 [5] In his BOC Form, the appellant states that he and his colleagues were taken to the national revolutionary police force's investigation department in XXXX XXXX, where they were interrogated about their presumed counter-revolutionary political activities. He states that he was detained for about five days, but that no charges were laid against him.3 [6] In his BOC Form, the appellant states that he then filed a grievance with his union, but to no avail. He states that on XXXX XXXX, 2007, he tried to flee his country with friends but that they were intercepted by the Cuban coast guard and taken to the technical department of investigation (DTI) in the city of Clara, where they were interrogated and detained for about five days.4 [7] In his BOC Form, the appellant states that he was able to regain his freedom thanks to a bribe that his parents paid to a police officer and that he was able to get his job back at the Cuban XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX as a XXXX XXXX expert. He states that the authorities often stopped him in the street for no reason and asked him to identify himself and give them his address.5 [8] In his BOC Form, the appellant states that on XXXX XXXX, 2008, he again tried to flee his country, but they were intercepted by the coast guard and placed in detention for seven days. He also states that during that detention, he and his colleagues were psychologically tortured and that he was physically mistreated, humiliated and threatened by the officers.6 [9] In his BOC Form, the appellant states that they had to sign a statement regarding their failed attempt to escape and that before releasing them, the captain of the DTI gave them conditions verbally and threatened them, forbidding them to return to Santa Clara at the risk of being reincarcerated.7 [10] In his BOC Form, the appellant states that he got his job back and went on with his life.8 [11] In his BOC Form, the appellant states that since 2001, he has been viewed as a dissident, that he felt that his freedom and his freedom of movement had been denied by the authorities, that they were continuing to spy on him and harass him by showing up at his home to inquire about him or by approaching his family to interrogate them, and that they are still doing so even though he is now in Canada.9 [12] In his BOC Form, the appellant states that in 2013, when he was still working for the XXXX, his employer offered him training in Montréal and that he took advantage of that opportunity. He states that the trip was highly controlled by Cuban government officers, since all his identity documents were taken away from him and only returned when it was absolutely necessary.10 [13] In his BOC Form, the appellant states that if he returned to his country, he would fear for his life since he has been detained and tortured in the past, and that on XXXX XXXX, 2014, government employees showed up at his brother's workplace to warn him to watch his conversations with him, the appellant; they told him that they were aware of his claim for refugee protection in Canada, even before it had been filed.11 [14] In his BOC Form, the appellant states that, from February 1993 to November 2013, he was a member of the Committee for the Defense of the Revolution (CDR), a committee whose membership is mandatory. He states that he also belonged to the Cuban workers union (CTC), whose membership is mandatory as well.12 [15] Before the RPD, in addition to his BOC Form, the appellant entered several documents into evidence.13 B. RPD decision [16] On May 20, 2014, the hearing was held before the RPD and, on May 23, 2014, the decision rejecting the refugee protection claim was rendered.14 [17] In its reasons for decision, the RPD found that the appellant (then the claimant) was not credible, as his testimony was not trustworthy with respect to the key elements of his refugee protection claim.15 [18] When asked by the RPD to explain how he had been able to find employment as a civil servant while he was viewed as a dissident, the appellant replied that he had not been investigated upon his hiring by the XXXX, but that, if they had done so, they would have found out about his 2001 activities. He added that his attempts to flee the country took place while he was not working.16 [19] When asked by the RPD to explain why he was not investigated in the Cuban context of a totalitarian and controlling state, the appellant answered that in order to work for the XXXX, an investigation must take place, but that the person who was supposed to carry out the investigation had failed to do so or had lied. When asked by RPD why this person would have lied about him, the appellant stated that the person had not insisted on investigating him or had not done their job.17 [20] The RPD considered these explanations to be insufficient and unreasonable: [Translation] The claimant's testimony contradicts the documentary evidence regarding the Cuban political context. The claimant himself stated that the organization he worked for did background checks on its employees. The claimant stated in his oral testimony that the state monitors its citizens and that the state has many citizens to monitor. Moreover, the documentary evidence is unequivocal with respect to the hold that the government has over its citizens and the fact that citizens live in a totalitarian state that practises a policy of generalized surveillance in order to silence and control counter-revolutionary and even potentially counter-revolutionary elements within its territory, by enforcing its dangerousness legislation.18 [21] In its reasons for decision, the RPD cites extracts from the documentary evidence in support of its conclusion that the appellant's testimony contradicts the information relating to current conditions in Cuba.19 [22] In referring to the documentary evidence that indicates that Cuban XXXX is used as a Communist propaganda tool, the RPD found it implausible that the appellant could work there while he was viewed as a dissident and, in addition, had been detained twice for trying to flee the country illegally.20 In its reasons for decision, the RPD adds that: [Translation] [19] Even if the panel believed that the XXXX's verification system failed in the claimant's case, which is quite unlikely considering the above, it is reasonable to believe that the police authorities, as well as those in the technical department of investigation (DTI), who had intercepted, identified and detained the claimant on a number of occasions since 2001 and who had imposed conditions on him upon his release, according to his statements, would have informed the XXXX of the claimant's activities that were considered counter-revolutionary and criminal, as well as the conditions to which he was subject.21 [23] In its reasons for decision, the RPD also identifies other reasons-such as the fact that he was working in a restricted area and that he worked as XXXX XXXX XXXX within the XXXX-that led it to disbelieve that he could have worked as he did if he had been a dissident and if he had been intercepted and detained for trying to leave his country illegally.22 [24] The RPD also considered that the appellant's behaviour was not consistent with that of a person who fears persecution since, when he was in Honduras, he did not claim asylum. The RPD found that the appellant's explanation that Honduras was too violent was not reasonable.23 [25] Given the appellant's vague and contradictory answers, the RPD did not believe that Cuban authorities had intercepted information about him regarding his claim for refugee protection in Canada.24 [26] Moreover, with respect to the appellant's fear of being prosecuted in Cuba for allegedly running away from a mission, the RPD was of the opinion that he had not established his allegations on this point. It was also of the opinion that the lack of information in the documentary evidence regarding the enforcement of articles 135.1 and 135.2 of the Cuban penal code indicated that they were not usually applied.25 [27] The RPD considered that, even though the Cuban authorities had imposed a sanction on the appellant for having deserted his country during an official mission abroad, he had failed to establish that this article of the penal code amounted to persecution or that it would be applied to him differently than it would be applied to others in the same situation, or that the sanction is illegal.26 It further noted that the decision in Valentin applied in this case.27 [28] Finally, the RPD concluded that the appellant had not demonstrated that he faced a serious possibility of persecution simply because he had claimed refugee protection in Canada, primarily because he made this statement only when being questioned by his counsel and also because it did not believe that the Cuban authorities had been informed of his refugee protection claim and because refugee claims are confidential in Canada.28 C. Grounds of appeal and remedy sought [29] In his memorandum, the appellant argues that the RPD committed a patently unreasonable error in concluding that there was no probability that he would be subjected to a risk to his life or to a risk of cruel and unusual treatment, as it failed to consider certain documents filed in evidence. He argues that the RPD also committed an unreasonable error in concluding that articles 135.1 and 135.2 of the Cuban penal code are usually not enforced and in incorrectly applying the decision in Valentin.29 [30] Regarding the documentary evidence that the RPD allegedly ignored, the appellant submits that it ignored the fact that his passport is a document and not a copy. He adds that it is not the fact of having travelled on behalf of a Cuban organization that put him in an illegal migration situation, but rather the fact that he travelled with an official passport.30 [31] The appellant also argues that executive order 305 amending the 1976 migration act covers passports in general, but that, in his case, he travelled with an official passport, which is generally issued to individuals who need one because of the official nature of their trip abroad and that it is very unlikely, even absurd, that such a passport would be issued to an individual travelling for personal reasons, a fact that the RPD ignored.31 [32] He adds that, in light of article 9.2 of the executive order, he must be considered an emigrant, since he travelled with an official passport in an official capacity and he was supposed to return to his country at the end of his trip. In failing to return to Cuba at the end of the 15 days for which he had been authorized to stay abroad, he violated migration laws and, consequently, he must be considered an emigrant. In view of the capricious and arbitrary way in which laws are enforced in Cuba, the appellant argues that it is very unlikely that he will be readmitted to his country; in other words, he has allegedly also lost his right to reside in his country of nationality.32 [33] In this regard, the appellant argues that the RPD committed an unreasonable error in concluding that there was no probability that he would be subjected to a risk to his life or to a risk of cruel and unusual treatment, although he has lost the right to return to his country of citizenship, which, in light of Canadian and American case law and international standards, may qualify as cruel and unusual treatment or even as a violation of his fundamental rights. He specifically refers to his right to security and freedom of movement.33 [34] Regarding the unreasonable error committed by the RPD in concluding that articles 135.1 and 135.2 of the Cuban penal code are not usually enforced, the appellant criticizes the RPD for relying on the absence of testimonial and documentary evidence to conclude that these articles are not concretely enforced in Cuba. The appellant argues that the lack of evidence is instead the result of a lack of information, which is the result of the absolute control of information exercised by the Cuban government. He cites excerpts from the documentary evidence describing the control exercised by the Cuban government over the media and means of communication.34 [35] The appellant further criticizes the RPD for failing to read all of the documentary evidence and to understand that thousands of government employees who abandon their missions abroad do not return to Cuba, which means that article 135.1 of the Cuban penal code is not enforced because deserters do not return to their country. He adds that, since it cannot punish deserters, the government takes it out on the members of their families who remain in the country.35 [36] Regarding the RPD's incorrect application of Valentin, the appellant's counsel writes the following on the matter: In Valentin v. Canada (Minister of Employment and Immigration (C.A.) [1991] 3 F.C. 390n, the Federal Court of Appeal states that refugee legislation was not meant to protect people who, having been subjected to no persecution, created a fear of persecution by making themselves liable to punishment for violating a criminal law of general application. However, lawful sanctions imposed for violating a law of general application do not per se constitute persecution, but may if they violate fundamental human rights or if they are disproportionate to the offence. The sanction of articles 135.1 and 135.2 of the Cuban Criminal Code of three to eight years is disproportionate to the offence; after all, all the appellant did was "take up residence abroad without complying with the immigration regulations in force". That is a "crime" in several Communist countries but is not a crime in the civilized world. There is nothing sinful, or wicked, or wrong, or evil, or injurious about it from the perspective of a civilized society that respects human rights. Furthermore, the sanction of three to eight years in the inhumane prisons of Cuba is abusive when one considers that the only "crime" our appellant committed is to "take up residence abroad without complying with the immigration regulations in force". Punishment should be part of the criminal system. The question is, how are we to be punished? Because the punishment should fit the crime. The sanctions that could be applied to our appellant should he have to return to Cuba may be legal in Cuba, but they violate fundamental human rights and are disproportionate to the offence. The possibility that these legal but disproportionate sanctions may be imposed on the appellant should he have to return after "taking up residence abroad without complying with immigration regulations" may be evidence that the authorities intend to persecute rather than prosecute him.36 [37] The appellant is asking the RAD to allow his appeal, to set aside the RPD's determination, to make the determination that should have been rendered, and to grant him the protection he is seeking under section 97 of the IRPA.37 [38] In his memorandum, the appellant does not state that he is submitting new evidence before the RAD, and he does not ask that a hearing be held. IV. APPROACH TO BE TAKEN IN THIS APPEAL [39] In the additional submissions provided at the request of the RAD following the decisions rendered by the Federal Court on July 17, 2014, the appellant's counsel states that the RAD must undertake its own analysis of the evidence submitted to the RPD, scrutinize it and become familiar with the entire case and then, it must amend, correct and render the decision that should have been rendered in the first place.38 [40] In a decision rendered on October 8, 2014, after reviewing the reasoning adopted by his Federal Court colleagues in preceding decisions,39 Justice Martineau notes that they appeared to have interpreted the IRPA differently and contradictorily regarding the nature of appeals before the RAD.40 Consequently, he identified three approaches: 1) the standard of judicial review, or "reasonableness" (decision of Member Gallagher and various other RAD decisions); 2) the standard of appellate review or of "palpable and overriding error" (Garcia Alvarez, Eng and Spasoja,41 above); and 3) a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a "hybrid appeal"-and the particular nature of questions of fact, or of mixed fact and law, raised by an appellant (Huruglica,42 above).43 [41] After dismissing the first approach, Justice Martineau states that the second and third approaches prevail today, but that they create a real dilemma, given the differences that exist between them.44 Rather than choosing between these last two approaches, applying the principle of judicial comity, Justice Martineau states that he chose the path of wisdom: allowing the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada.45 [42] In a decision rendered on November 12, 2014, Justice Gagné states that, when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, even though opinions diverge within the Federal Court regarding the level of deference that is owed.46 [43] In a decision rendered on November 14, 2014, Justice Martineau demonstrates that the approach then used by the RAD to determine its role in relation to the RPD was an unacceptable outcome in law.47 He is unequivocal: an appeal before the RAD is not a judicial review. The RAD has much broader powers on appeal than those of a court of law sitting in judicial review,48 and he invites the RAD to consider the three options before it (a true appeal, an appeal de novo, and a hybrid appeal) with an open mind.49 In the conclusion of this decision, Justice Martineau states that it does not appear appropriate to him to judicially impose any standard of deference on the RAD, until such time as the Federal Court of Appeal or the Supreme Court of Canada has decided the issue definitively. He states that, in the interim, the onus will be on the RAD to review the IRPA and to adopt a new test based on an analysis that will take all the relevant factors into account. He adds that, in his opinion, the two alternative approaches (the so-called "palpable and overriding error" appellate standard of review, and a composite and variable standard of review) discussed in Alyafi are not the only options to consider-the absence of deference in the case of any error of law, fact, or law and fact being also a possible option.50 [44] In a decision rendered on November 21, 2014, citing one of his colleagues, Justice Shore states that "[s]ave for cases in which the credibility of a witness is critical or determinative, or where the RPD enjoys a particular advantage over the RAD in reaching a specific conclusion, the RAD owes no deference toward the RPD's assessment of the evidence."51 [45] Drawing as much as possible on the decisions rendered to date by the Federal Court, I am of the opinion that, in the instant case, I must conduct my own assessment of all the evidence, analyze all aspects of the RPD's decision and reach my own conclusion as to whether or not the appellants are refugees or persons in need of protection. I am also of the opinion that I must show a certain amount of deference to the RPD's findings regarding the appellant's credibility. V. ANALYSIS OF THE MERITS OF THE APPEAL [46] After analyzing all the evidence and the RPD's reasons for decision, I conclude that the appellant has established that it is more likely than not that, if he were to return to Cuba, he would be personally subjected to a risk of cruel and unusual treatment or punishment. My reasons are as follows. A. Current conditions in Cuba [47] According to the documentary evidence, harassment by Cuban authorities of their political opponents is relentless, surveillance of these individuals is common practice, and short-term detentions of individuals who demand respect for their civil and political right are routinely used by the government to curtail their activities. Such short-term detentions are becoming more and more frequent, as the Cuban government deviates from international principles and standards regarding deprivation of liberty, notably with respect to freedom of expression, association and assembly. In short, according to the documentary evidence, the Cuban authorities do not tolerate any criticism outside the official mechanisms established under government control.52 [48] While there are differences of opinion on this matter, according to a certain number of non-governmental organizations, including Human Rights Watch (HRW) and Amnesty International (AI), in practice, Cuban courts are subordinated to the executive and legislative branches, thus denying meaningful judicial protection, since all judges are subordinate to the Party and State and whoever does not act in accordance with that subordinate relationship is immediately removed from the bench.53 [49] According to HRW, Cuban security officers virtually never presented arrest orders to justify detentions, and victims of such arrests were held incommunicado, without their families being notified, for periods ranging from several hours to several days, often at police stations. AI recommends that Cuban authorities inform individuals, at the time of their detention, of the specific reasons for their arrest. It also recommends the immediate termination of the practice of incommunicado detention.54 [50] Also according to HRW, Cubans who dare to criticize the authorities risk criminal charges and will not enjoy due process guarantees. HRW further states that political prisoners are routinely denied parole after completing the minimum required sentence as punishment for refusing to participate in ideological activities such as re-education classes.55 [51] In a document dated January 2013, HRW provides the following clarifications: Cuba remains the only country in Latin America that represses virtually all forms of political dissent. In 2012, the government of Raul Castro continued to enforce political conformity using short-term detentions, beatings, public acts of repudiation, travel restrictions, and forced exile. Although in 2010 and 2011 the Cuban government released dozens of political prisoners on the condition that they accept exile in exchange for their freedom, the government continues to sentence dissidents to one to four-year prison terms in closed, summary trials, and holds others for extended periods without charge. It has also relied increasingly upon arbitrary arrests and short-term detentions to restrict the basic rights of its critics, including the right to assemble and move freely. While reforms passed in October 2012 eliminate the need for Cubans to obtain an exit visa to leave the island, they contain vague, broad provisions which could be used by authorities to continue to deny the right to travel to people who are critical of the government.56 [52] According to the documentary evidence, the CDRs were called upon by the authorities to strengthen their vigilance against antisocial behaviour, as their presence extends to every neighbourhood of the country and their meetings can become very harsh for those who show any disagreement with the country's laws or policies.57 [53] In my opinion, this is the context in which it is appropriate to analyze article 135.1 of the Cuban penal code, which states that any civil servant or employee participating in a mission abroad who abandons their mission, ends it, or fails to return to Cuba when required to do so, either expressly or tacitly, will be deprived of their freedom for three to eight years.58 [54] The fact that the documentary evidence refers to the problems experienced by Cuban civil servants or employees who fail to return to their country following a mission abroad does not necessarily mean that the appellant himself will be the victim of such a situation. It must be noted that documentary evidence regarding prevailing country conditions does not, in and of itself, establish the existence of a well-founded fear of persecution or of a risk to the life of a refugee protection claimant from that country. Claimants must also establish a nexus between that documentary evidence and their personal situation.59 I will now analyze the credibility of the appellant's allegations regarding this issue. B. The credibility of the appellant's allegations [55] In its reasons for decision, the RPD clearly states that in light of the appellant's testimony, he was not credible regarding the fact that, in the past, he was allegedly viewed as a dissident by the Cuban authorities.60 [56] In his memorandum, the appellant does not contest the RPD's conclusions on this matter. And, in my opinion, after carefully reading the RPD's reasons for decision, I find that it did not err with respect to this specific issue. [57] Moreover, on the issue of the credibility of the appellant's allegations regarding the possibility of certain articles of the Cuban penal code being enforced against him, after carefully reading the reasons for decision, I am of the opinion that the RPD did not draw any specific conclusions.61 [58] First, it states instead that the appellant did not establish these allegations with respect to this specific issue. Second, the RPD was of the opinion that the absence in the testimonial and documentary evidence of cases involving the concrete application of article 135.1 of the penal code stemmed more from the fact that it is not generally applied. And third, it considered that even if the authorities imposed the sanction allowed for in article 135.1 of the Cuban penal code, the appellant had failed to establish that this article amounts to persecution or that it would be applied to him differently than it would be to others in the same situation, or that the sanction is illegal.62 [59] It states the following on this matter: [Translation] [The appellant] failed to establish that the penal code in question represents anything other than a law designed to ensure more effective, more reliable and more equitable functioning of the population and the government, or that the penalties provided for were disproportionate to these objectives or unacceptable to a large segment of the population, or that they were imposed arbitrarily, or that they were of unusual harshness and therefore degrading in terms of the dignity and worth of human beings to the point of being of a nature that shocks the collective conscience.63 [60] Lastly, it states that Valentin applies in this case, and it cites an excerpt from that decision rendered by the Federal Court of Appeal: Neither the international Convention nor our Act, which is based on it, as I understand it, had in mind the protection of people who, having been subjected to no persecution to date, themselves created a cause to fear persecution by freely, of their own accord and with no reason, making themselves liable to punishment for violating a criminal law of general application.64 [61] With regard to the possible application of certain articles of the Cuban penal code, I am of the opinion that I am not required to defer to the RPD's conclusions since, based on the reasons for decision, the appellant's credibility was not critical or determinative. I am of the opinion that the possible application of certain articles of the Cuban penal code is, in this case, a mixed question of assessment of the documentary evidence and of law. C. Analysis under section 97 of the IRPA [62] The standard of proof applicable to section 97 of the IRPA is that of a "balance of probabilities". This is the standard of proof that the panel applies in assessing the evidence in order to make its factual findings.65 [63] However, the test for determining the existence of a danger of torture under paragraph 97(1)(a) or a risk under paragraph 97(1)(b) of the IRPA is whether or not, based on its factual findings, the panel is satisfied that it is more likely than not that the person would be subjected to one of these risks.66 [64] As the Federal Court of Appeal has already explained, there are significant differences between sections 96 and 97 of the IRPA: [33] It is true that at a refugee hearing a panel may be asked to consider both whether an individual is a Convention refugee and whether that individual is in need of protection. Some of the evidence may apply to both determinations. However, there are differences between section 96 and paragraph 97(1)(a). For example, a claim for protection under paragraph 97(1)(a) is not predicated on the individual demonstrating that he or she is in danger of torture for any of the enumerated grounds of section 96. Further, there are both subjective and objective components necessary to satisfy the requirements of section 96: see Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at paragraph 120, per Major J., while a claim under paragraph 97(1)(a) has no subjective component.67 [65] In this case, the documentary evidence shows that in Cuba, the penal code contains an article, namely article 135.1, that states that any civil servant or employee participating in a mission in a foreign country who abandons their mission, ends it, or fails to return to Cuba when required to do so, either expressly or tacitly, will be deprived of their freedom for three to eight years.68 [66] According to Canadian case law, a person's fear of a criminal sanction for overstaying the stay authorized by his or her exit visa is not, in itself, a reasonable basis for a fear of persecution,69 since an isolated sentence can only in very exceptional cases satisfy the element of repetition and relentlessness found at the heart of the notion of persecution.70 That said, in certain circumstances, it is necessary to push the analysis further and examine whether the punishment for failing to return to a country as scheduled could constitute a reasonable basis for a fear of persecution.71 [67] The decisions in Vasallo, Valentin and Donboli, to which I have just referred, concern cases where the fear of persecution was raised. In his appeal record, the appellant does not base his claim on his fear of persecution if he were to return to Cuba, but rather on the fact of being subjected to a risk of cruel and unusual treatment or punishment, such risk not resulting from legitimate sanctions. [68] I am aware that, in Perez, it was ruled that it was far from clear that the applicant in that matter would be charged and convicted since the evidence demonstrated that she could still apply for a special re-entry permit to return to Cuba. It was also concluded that, in that case, there was no evidence that the applicant would, with such a permit, be prosecuted under Cuban laws, as the documentary evidence contained not a single reference to any similarly-situated person. In short, the Federal Court then ruled that there was not sufficient evidence to allow it to conclude that the appellant's fear of imprisonment was well-founded.72 [69] That said, that decision was made as part of a judicial review, and it applied the standard of reasonableness. It was in this context that it was finally decided that the applicant had not persuaded the Court that the Board's findings did not fall within the range of possible, acceptable outcomes.73 [70] In my opinion, according to case law to date, as a member of the RAD, I must absolutely not apply a review standard comparable to that of reasonableness, which is specific to judicial reviews. Rather, I must reach my own conclusions in light of all the evidence on file, and I am permitted to substitute the determination that, in my opinion, should have been made, for the RPD's determination, even if that decision was reasonable. [71] In a recent decision, Justice Mactavish referred to the consensus that seemed to exist between the parties regarding the three elements to be satisfied in order for an individual to be recognized as a person in need of protection under subparagraph 97(1)(b)(iii): a The claimant must demonstrate that he or she faces a risk to life or a risk of cruel and unusual treatment or punishment (as that term is understood in Canadian law) in their country of origin; b. The treatment or punishment in question must not be inherent or incidental to lawful sanctions; and c. If the treatment or punishment is inherent or incidental to lawful sanctions, the claimant must then demonstrate that it was imposed in disregard of accepted international standards.74 [72] While it is true that the documentary evidence indicates that no information on the application of articles 135.1 and 135.2 could be found among the sources consulted by the IRB's Research Directorate, it nevertheless shows that, in order to punish defectors, among other measures, the Cuban government prevents their families from travelling for five years.75 And, in my opinion, what is clearly established is in fact existence of legal provisions that criminalize the failure by Cuban civil servants and employees to return to their country when the authorities require it, either expressly or tacitly. [73] According to my assessment of the documentary evidence on file, it has been established that legal provisions currently exist in Cuba that criminalize the failure by Cuban civil servants and employees to return to their country when the authorities require it, either expressly or tacitly. These provisions which, according to the evidence on file, are still in effect would allow Cuban authorities to prosecute the appellant and deprive him of his freedom for three to eight years. According to my evaluation of the appellant's testimony, he established that he was allowed to leave his country for a 15-day period and that he largely overstayed the period for which he was authorized to remain outside his country as a civil servant or employee. According to my evaluation of the information provided by the appellant in his BOC Form, it has been established that he was an employee of a recognized institution in Cuba, the XXXX, and that he was a member of a CDR, which means that his personal absence from the country could not go unnoticed. I would add that, according to the documentary evidence, the vast majority of Cuban civil servants and employees who overstay their authorization to remain abroad simply fail to return to their country, which makes those who do or who are obliged to do so all the more conspicuous.76 I am of the opinion that it is on the basis of these facts that I must now ask myself whether the appellant has established that it is more likely than not that, if he were to return to Cuba, he would be personally subjected to a risk of cruel and unusual treatment or punishment that is not incidental to legitimate sanctions. [74] The meaning of the expression "cruel and unusual treatment or punishment" must be drawn from the evolving standards of decency that mark the progress of a maturing society. In Canada, cruel and unusual treatment or punishment is that which is so excessive as to outrage the standards of decency.77 The factors examined by Canadian courts to determine whether treatment or punishment is cruel and unusual include whether the treatment goes beyond what is necessary to achieve a legitimate aim, whether there are adequate alternatives, whether the treatment is arbitrary, and whether it has a value or social purpose. Other relevant considerations include whether the treatment in question is unacceptable to a large segment of the population, whether it accords with public standards of decency or propriety, whether it shocks the general conscience, and whether it is unusually severe and hence degrading to human dignity and worth.78 [75] According to my assessment of the documentary evidence on file, there is nothing to show that the provisions of the penal code allowing Cuban authorities to prosecute the appellant and deprive him of his freedom for three to eight years are necessary to achieve a legitimate aim. Supposing that these provisions refer to a specific and legitimate social purpose, given the fact that the right to leave one's country and to return to it is a fundamental human right,79 it is reasonable to believe that being deprived of one's freedom for three to eight years because a Cuban civil servant or employee failed to return to the country when the authorities required it goes well beyond what is necessary to achieve that aim. [76] In light of current conditions in Cuba, it is reasonable to think that these provisions can be used arbitrarily insofar as most human rights violations in that country are committed by the authorities themselves and that impunity is widespread there. In addition, the documentary evidence indicates that the reform allowing Cuban citizens to leave their country is not universally applied and that the authorities harass some of their citizens upon their return to their country.80 Moreover, credible reports indicate that in Cuba, detainees are assaulted by members of the security forces and by other prisoners with impunity, not to mention that conditions in prisons and detention centres are very harsh.81 Lastly, the documentary evidence indicates that, in practice, Cuban courts are subordinate to executive and legislative branches, thus denying meaningful judicial protection, since all judges are subordinate to the Party and State and whoever does not act in accordance with that subordinate relationship is immediately removed from the bench.82 [77] Among the other relevant considerations, given the control exercised by Cuban authorities over their country's means of communication, it is difficult to know whether the treatment in question is unacceptable to a large segment of the population. As to knowing whether or not it accords with public standards of decency or propriety, whether it shocks the general conscience or whether it is unusually severe and hence degrading to human dignity and worth, I consider it appropriate to analyze these considerations in light of international standards. [78] Subparagraph 97(1)(b)(iii) of the IRPA requires us to take international standards into consideration.83 Article 12 of the International Covenant on Civil and Political Rights upholds the freedom of all individuals to leave their country. Although it provides that this freedom may be restricted, the restrictions in question must be provided for in legislation, and these restrictions must be necessary to protect national security, public order, public health or morals, and the rights and freedoms of others, and they must be consistent with the other rights recognized in that Covenant. It also stipulates that no one can be arbitrarily deprived of the right to enter their own country.84 The information concerning the list of states that have ratified this Covenant reveals that Cuba has not yet done so.85 I see nothing in the documentary evidence allowing me to establish that the restrictions adopted by Cuban authorities are necessary to protect national security, public order, public health and morals, or the rights and freedoms of others, or that they are consistent with other rights recognized in the International Covenant on Civil and Political Rights. [79] As the appellant notes in his memorandum, the restrictions imposed on his freedom to leave his country and return to it may be consistent with socialist standards of decency or propriety, but, in the context of a free and democratic society, they can most certainly be viewed as unusually severe and thus degrading to human dignity and worth.86 [80] Article 135.1 of the Cuban penal code states that any civil servant or employee participating in a foreign mission who abandons the mission, ends it or fails to return to Cuba when the authorities require them to do so, either expressly or tacitly, will be deprived of their freedom for three to eight years. In light of all the factors analyzed above, I am of the opinion that this provision does not constitute a legitimate sanction within the meaning of subparagraph 97(1)(b)(iii) of the IRPA and that it constitutes cruel and unusual treatment or punishment. [81] According to my interpretation of paragraph 97(1)(b) of the IRPA, I do not believe that I need to consider whether or not it is absolutely certain that the appellant will be charged and convicted under the Cuban penal code. In my opinion, the question I must ask myself is whether it is more likely than not that, if the appellant were to return to Cuba, he would be personally subjected to a risk of cruel and unusual treatment or punishment that is not the result of legitimate sanctions. I am of the opinion that these provisions of the Cuban penal code clearly allow Cuban authorities to prosecute the appellant and to deprive him of his freedom. Even if it is not absolutely certain that the Cuban authorities would act in this way, I am of the opinion that, in the current context in Cuba, it is more likely than not that the appellant would be, at the very least, subjected personally to a risk of cruel and unusual punishment, which seems to me sufficient grounds to grant him protection under the IRPA. VI. CONCLUSION [82] For these reasons, I am setting aside the RPD's determination and substituting the one that, in my opinion, should have been made, namely that XXXX XXXX XXXX is a "person in need of protection" within the meaning of section 97 of the IRPA. [83] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette December 12, 2014 Date IRB translation Original language: French 1 The appellant's Basis of Claim Form (BOC Form), pages 65, 70 and 73 of the RPD record. 2 Idem, page 75 of the RPD record. 3 Idem, page 76 of the RPD record. 4 Idem. 5 Idem. 6 Idem, page 77 of the RPD record. 7 Idem. 8 Idem. 9 Idem. 10 Idem, page 78 of the RPD record. 11 Idem. 12 Idem, page 74 of the RPD record. 13 The list of these documents is reproduced at pages 79, 92 and 109 of the RPD record. The documents themselves are reproduced at pages 93-108, 110-124, and 137-156 of the RPD record. 14 RPD decision, pages 3 to 14 of the RPD record. 15 Idem, paragraph 10, page 5 of the RPD record. 16 Idem, paragraphs 12 and 13, page 6 of the RPD record. 17 Idem, paragraph 13, page 6 of the RPD record. 18 Idem, paragraph 13, pages 6 and 7 of the RPD record. 19 Idem, paragraphs 14 and 15, page 7 of the RPD record. 20 Idem, paragraphs 16 to 18, pages 8 and 9 of the RPD record. 21 Idem, paragraph 19, page 9 of the RPD record. 22 Idem, paragraphs 20 to 23, pages 9, 10 and 11 of the RPD record. 23 Idem, paragraph 24, page 11 of the RPD record. 24 Idem, paragraph 25, pages 11 and 12 of the RPD record. 25 Idem, paragraphs 27 to 30, pages 12 and 13 of the RPD record. 26 Idem, paragraphs 32 to 34, pages 13 and 14 of the RPD record. 27 Idem, paragraph 35, page 14 of the RPD record. 28 Idem, paragraph 36, page 14 of the RPD record. 29 Appellant's memorandum, received on July 2, 2014, pages 16 to 38 of the appeal record. The appellant's additional submissions, August 20, 2014, pages 39 to 43 of the appeal record. 30 Appellant's memorandum, pages 16 and 17 of the appeal record. 31 Idem, page 17 of the appeal record. 32 Idem, pages 17 and 18 of the appeal record. 33 Idem, pages 23 to 38 of the appeal record. 34 Idem, pages 19 to 21 of the appeal record. 35 Idem, page 21 of the appeal record. 36 Idem, page 22 of the appeal record. 37 Appellant's additional submissions, page 43 of the appeal record. 38 Idem. 39 Iyamuremye v. Canada (Minister of Citizenship and Immigration), No. IMM-5282-13, Shore, May 26, 2014; 2014 FC 494. Garcia Alvarez v. Canada (Minister of Citizenship and Immigration), No. IMM-7218-13, Shore, July 17, 2014; 2014 FC 702. Eng v. Canada (Minister of Citizenship and Immigration), No. IMM-7281-13, Shore, July 17, 2014; 2014 FC 711. Huruglica v. Canada (Minister of Citizenship and Immigration), No. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. Yetna v. Canada (Minister of Citizenship and Immigration), No. IMM-7567-13, Locke, September 10, 2014; 2014 FC 858. Njeukam v. Canada (Minister of Citizenship and Immigration), No. IMM-7280-13, Locke, September 10, 2014; 2014 FC 859. Spasoja v. Canada (Minister of Citizenship and Immigration), No. IMM-7630-13, Roy, September 23, 2014; 2014 FC 913. 40 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 46. 41 In Spasoja, Justice Roy ruled that an appeal before the RAD must be dealt with as an appeal and not as a quasi-judicial review. He goes on to state that an error of fact must be palpable and overriding to succeed on appeal, with the understanding, furthermore, that questions of law must be analyzed on a correctness standard. 42 In Huruglica, Justice Phelan ruled that a standard of review analysis is not an appropriate analytical approach in the context of appeals before the RAD, and that one must instead look at such factors as the purpose of the appellate tribunal, the relevant statutory provisions, comparable expertise, and comparative appellate appeal regimes. After analyzing these factors, he concludes that the RAD is required to conduct a hybrid appeal, which means that it must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. That said, according to this last decision, in conducting its assessment as part of the administrative appeal, the RAD "can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a 'palpable and overriding error'." 43 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 16. In Triastcin v. Canada (Minister of Citizenship and Immigration), No. IMM-5981-13, Shore, October 15, 2014; 2014 FC 975, at paragraph 29, Justice Shore states that his colleague's decision in Alyafi summarizes, by means of a comprehensive analysis, all of the Federal Court decisions made to date with regard to the mandates of the RAD; that decision provides an overview to help arrive at a certain stare decisis in this regard. In Diarra v. Canada (Minister of Citizenship and Immigration), No. IMM-1217-14, Beaudry, October 23, 2014; 2014 FC 1009, at paragraphs 20 to 22, Justice Beaudry reiterates the three approaches identified by his colleague Justice Martineau. 44 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 43. 45 Idem, at paragraphs 42 to 46. 46 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 47 Djossou v. Canada (Minister of Citizenship and Immigration), No. IMM-7980-13, Martineau, November 14, 2014; 2014 FC 1080, at paragraph 37. 48 Idem, at paragraph 41. 49 Idem, at paragraph 55. 50 Idem, at paragraph 91. 51 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22, citing the earlier decision in Yetna v. Canada (Minister of Citizenship and Immigration), No. IMM-7567-13, Locke, September 10, 2014; 2014 FC 858, at paragraph 17. 52 Immigration and Refugee Protection Board (IRB), Documentation Package on Cuba, March 14, 2014: Document 2.3: Amnesty International, Routine Repression. Political Short-Term Detention and Harassment in Cuba, March 2012, AMR 25/007/2012, 19 pages, at pages 5 and 7. This document is not reproduced in the RPD record. That said, the index of this documentation package is reproduced at pages 81 to 91 of the RPD record. 53 Idem: Document 2.8: Human Rights Council, Working Group on the Universal Periodic Review, Summary Prepared by the Office of the High Commissioner for Human Rights in Accordance with Paragraph 5 of the Annex to Human Rights Council resolution 16/21: Cuba, January 11, 2013, A/HCR/WG.6/16/CUB/3, 33 pages, paragraph 42, page 6. 54 Idem, paragraph 38, page 6. 55 Idem, paragraph 44, page 6. 56 Idem: Document 2.4: HRW, Cuba, January 2013, Country Summary, 5 pages, at page 1. 57 Idem: Document 2.6: Freedom in the World, Cuba. Freedom in the World 2013, 6 pages, at page 4: "The regime has called on its neighborhood-watch groups, known as Committees for the Defense of the Revolution, to strengthen against 'antisocial behaviour', a euphemism for opposition activity." 58 Idem: Document 9.1: Research Directorate, IRB, Cuba: A section of the penal code entitled "Abandonment of Functions" and its use to punish employees of the government who defect and abandon their positions (2002-May 2003), CUB102204.E, February 6, 2007, 4 pages. This document is reproduced at pages 60 to 64 of the RPD record. 59 Morales Alba v. Canada (Citizenship and Immigration), (No. IMM-3943-07), Shore, October 29, 2007; 2007 FC 1116, at paragraphs 31 and 32. 60 RPD decision, paragraphs 10 to 26, pages 5 to 12 of the RPD record. 61 Idem, paragraphs 27 to 33, pages 12 and 13 of the RPD record. 62 Idem, paragraphs 28 to 34, pages 12 and 13 of the RPD record. 63 Idem, paragraph 34, pages 13 and 14 of the RPD record. 64 Idem, paragraph 35, page 14 of the RPD record. 65 Rajadurai v. Canada (Minister of Citizenship and Immigration), No. IMM-5030-12, Strickland, May 22, 2013; 2013 FC 532, paragraph 34. 66 Idem. 67 Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, paragraph 33. 68 IRB, Documentation Package on Cuba, March 14, 2014: Document 9.1, cited above in footnote 57. 69 Vasallo v. Canada (Minister of Citizenship and Immigration), No. IMM-8526-11, Bédard, May 31, 2012; 2012 FC 673, at paragraphs 20 and 21, citing the Federal Court of Appeal decision in Valentin, as well as a number of Federal Court decisions applying that principle. 70 Valentin v. Canada (Minister of Employment and Immigration), (1991), [1991] 3 FC 390 (available on QL) (CA), paragraph 8, as cited by the Honourable Mr. Justice Bédard in Vasallo, at paragraph 20. 71 Donboli v. Canada (Minister of Citizenship and Immigration), 2003 FC 883, at paragraph 4, as cited by the Honourable Mr. Justice Bédard in Vasallo, at paragraph 22. 72 Perez v. Canada (Minister of Citizenship and Immigration), No. IMM-6504-09, Snider, August 23, 2010; 2010 FC 833, at paragraph 16. 73 Idem, at paragraph 22. 74 Canada (Minister of Citizenship and Immigration) v. Harvey, No. IMM-7986-12, Mactavish, June 28, 2013; 2013 FC 717, at paragraph 41. 75 IRB, Documentation Package on Cuba, March 14, 2014: Document 9.1, cited above in footnote 58. 76 Idem. 77 Alvarez v. Canada (Minister of Citizenship and Immigration), No. T-356-13, Mactavish, July 4, 2014; 2014 FC 651, at paragraphs 612 and 613, citing the Supreme Court of Canada decision in R. v. Smith, [1987] 1 SCR 1045, at paragraph 83. 78 Idem, at paragraph 614, citing Smith, at paragraph 44. 79 Universal Declaration of Human Rights, Article 13. 80 IRB, Documentation Package on Cuba, March 14, 2014: Document 2.1: USA, Department of State, Cuba 2013 Human Rights Report, February 24, 2014, 30 pages, on page 1. This document is reproduced at pages 15 to 44 of the RPD record. 81 Idem, at pages 16 to 18 of the RPD record. 82 See the reference at footnote 53 of this decision. 83 Klochek v. Canada (Minister of Citizenship and Immigration), No. IMM-2670-09, O'Reilly, April 30, 2010; 2010 FC 474, at paragraph 10. 84 International Covenant on Civil and Political Rights, (1976). Vol. 999 United Nations Treaty Series 171, entry into force in Canada on August 19, 1976, [1976] Canada Treaty Series, No. 47. 85 For example, the Web site of the Office of the High Commissioner for Human Rights: http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=CUB&Lang=EN. 86 Appellant's memorandum, pages 22, 24, 25 and 34-36 of the appeal record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-02156 8