MB4-04904

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. / No de dossier de la SAR : MB4-04904 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 at Montréal, Quebec Appel instruit à Date of decision May 12, 2015 Date de la décision Panel Roxane Cyr 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 FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Cuba, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] The appellant did not present any new evidence in support of her appeal and is not requesting a hearing before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1), the RAD sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX is a "Convention refugee" under section 96 of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [4] The appellant fears the Cuban government since she deserted, in Canada, the vessel on which she was working as XXXX XXXX. She allegedly deserted the ship on XXXX XXXX, 2014. The vessel was supposedly fined $25,000, which increases the appellant's fear of returning, because she apparently learned that the ship's captain was annoyed and held her responsible for the fine. The appellant is afraid of the captain and others who allegedly threatened her to stop her from fleeing the ship. [5] The appellant fears having to face the consequences of her desertion, specifically, being interrogated, imprisoned and shunned by society and, consequently, no longer being able to work. [6] Prior to her desertion, the appellant allegedly always behaved in an exemplary manner with respect to her country's political demands. She was reportedly a member of the Union des jeunes communistes [Young Communist League], the Fédération des femmes cubaines [Federation of Cuban Women], the Comité de devance de la révolution [Committee for the Defense of the Revolution] and the Syndicat des travailleurs [workers' union]. She supposedly kept her criticism of the government to herself. [7] Apparently, all of this made it possible for her to obtain a bachelor's degree in XXXX XXXX from the naval academy of the ministry of the revolutionary armed forces of the Republic of Cuba (see page 84 of the RPD record). The appellant is a XXXX XXXX XXXX XXXX XXXX and a XXXX XXXX XXXX. [8] The appellant and her mother allegedly had their homes searched a few times between 2006 and 2014, on the suspicion that one of them kept unauthorized wares, such as sugar, beef or clothing, at her home; however, neither of them was ever formally charged or fined. RPD DECISION [9] The RPD rendered a negative decision. It found the appellant to be credible. [10] The RPD was of the opinion, however, that the appellant did not establish that she would be subjected to persecution, torture, a risk to her life or a risk of cruel and unusual treatment or punishment should she return to Cuba. [11] The RPD reached this conclusion for the following reasons: - The RPD found that the appellant would merely face the consequences of a law of general application for unauthorized departure and, relying on the 2013 Country Report on Human Rights Practices (see page 28 of the RPD record), that even though the official sanctions include up to three years' imprisonment, in practice, offenders are generally sentenced to two to three weeks' imprisonment or to a fine, and that this was not persecution. - Even though, in her arguments, counsel for the appellant submits that, as a graduate of the ministry of the revolutionary armed forces of the Republic of Cuba (see page 239 of the RPD record), the appellant could be perceived as an army deserter, which automatically entailed much more severe consequences amounting to persecution, the RPD found otherwise. [12] The RPD found that, as a navy XXXX, the appellant did not have military status, but she could be called up to serve her country during wartime. The appellant did not establish that she could be charged with desertion. - The RPD also found that the appellant would not be charged under the dangerousness law (see page 176 of the RPD record), which deals severely with any political dissidence, as it preferred the documentary evidence of the 2013 Human Rights Country Report on Human Rights Practices (see page 28 of the RPD record), which sets out the usual consequences of unauthorized departures from the country. - According to the RPD, it was speculative to claim that because the ship on which the appellant was travelling was fined and Cuban authorities found out that the appellant had claimed refugee protection, the appellant would face treatment amounting to persecution should she return to Cuba. The RPD found that the fact that the captain was annoyed about the fine, that the crew members had been questioned and that the appellant's mother had been harassed was not enough to suggest that the appellant would be persecuted. GROUNDS OF APPEAL [13] The appellant makes the following submissions: - The RPD erred in concluding that the appellant was neither a deserter nor considered to be one by Cuban authorities and that she could therefore not be charged with deserting the army. - The RPD erred in concluding that the consequences she would face as a result of her desertion would merely be prosecution under impersonal laws of general application. - The RPD erred in concluding that the appellant's fears of being persecuted within the meaning of the Convention were speculative and that the appellant had therefore not met her burden of proof in this respect. - The RPD did not give adequate consideration to the appellant's past involvement in various associations and the role played by Comités de défense de la Révolution (CDR) [Committees for the Defense of the Revolution] in Cuban society and with respect to the appellant. THE ROLE AND FUNCTIONS OF THE RAD [14] The RAD is a newly constituted body that reviews RPD decisions. Its role remains to be clarified. The IRPA does not explicitly set out the standard of review or intervention to be applied when reviewing RPD decisions. [15] To date, the decisions of the Federal Court have established that "Parliament conferred a true appellate function on the RAD, a specialized (if not overspecialized) tribunal, which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have."1 [16] In Alvarez,2 the Honourable Justice Shore finds that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner ...." These appeals are not appeals de novo, and the RAD cannot hold a hearing unless new evidence is presented in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA, which limits the scope of review that the IRPA gives to the RAD. Moreover, this is not a judicial review, whose sole purpose is to determine whether the RPD's decision was reasonable. [17] In Eng,3 Justice Shore expresses the opinion that the RPD, as the tribunal of first instance, is owed a measure of deference by the RAD with regard to its findings of fact, because it is better situated, having seen and heard the claimant. However, the RAD must perform its own assessment of all the evidence "in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."4 [18] In Huruglica,5 a decision rendered after Alvarez1 and Eng,3 the Honourable Justice Phelan expresses the opinion that "...the need for deference...is less compelling between the RAD and the RPD than it is between the judiciary and the executive" and that the RAD is given much greater remedial powers. Moreover, the IRPA provides in subsection 111(1) that the RAD may substitute its own determination for that of the RPD. In doing so, the RAD must conduct its own independent analysis of the appeal record. The standard of reasonableness, which was initially applied by the RAD, was unequivocally rejected by the Court (see Alvarez, Eng and Spasoja6). [19] In Huruglica,5 Justice Phelan states as follows: "In conducting its assessment, it 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'."7 [20] Huruglica5 therefore advocates an approach where deference must be given to the RPD with respect to its credibility assessment, while conducting an independent analysis of credibility that is not limited to "palpable and overriding error." With regard to the assessment of the documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."8 [21] In Spasoja,9 rendered after Huruglica,5 the Honourable Justice Roy puts forward a different opinion than that expressed by the Honourable Justice Phelan in Huruglica. He is of the view that the standard of review applied by the RAD must be that of "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's credibility findings and that questions of law are reviewable on the correctness standard. This conclusion is consistent with Alvarez1 and Eng.3 [22] In Alyafi,10 Justice Martineau is of the opinion that the two positions, the first explained in Alvarez, Eng and Spasoja11 (palpable and overriding error) and the second in Huruglica5 (described by Justice Martineau as a "composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal"),12 can both be applied as long as the Federal Court of Appeal or the Supreme Court of Canada has not decided the question of the scope of appellate review definitively. [23] It seems to me that the RAD owes deference to the RPD's credibility findings, in accordance with Huruglica,5 given that the RPD has had the opportunity to see, hear and question the appellant. In its analysis, the RAD will consider all the evidence, including the appellant's testimony, and will conduct its own analysis while showing deference to the RPD's credibility findings. [24] The RAD will intervene only if it is of the opinion that the RPD's findings on questions of fact or of mixed fact and law are erroneous or not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. With respect to errors of law, the standard of review that the RAD will apply is correctness (Spasoja9). ANALYSIS [25] The RPD found that the appellant was credible. [26] It is the RAD's view that the RPD erred in not considering all the evidence when assessing the appellant's prospective fear. [27] The RPD erred in not taking into account the appellant's specific profile. [28] The appellant is not a regular Cuban citizen. In XXXX, she graduated from the naval academy of Cuba's armed forces as an XXXX XXXX XXXX XXXX XXXX XXXX (see page 239 of the RPD record). Prior to that, she completed pre-university studies at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (see page 84 of the RPD record). [29] She has been very active politically: she was a member of the communist youth movement, the Fédération des femmes, the Comité de défense de la révolution (CDR) and the Syndicat des travailleurs. [30] When she defected, she was a navy XXXX and a XXXX XXXX XXXX (see page 85 of the RPD record). On the ship on which she was working until she deserted (see page 82 of the RPD record) and claimed refugee protection, the appellant was carrying out the duties of an XXXX XXXX and was doing a XXXX XXXX XXXX XXXX in this position. She was able to obtain this position thanks to her military training, and she had the trust of her government, which issued her with a XXXX XXXX XXXX XXXX XXXX (see page 111 of the RPD record). [31] In the RAD's opinion, the appellant's profile is that of a person who distinguished herself before her government, who secured her government's trust, and who obtained privileges, such as her studies in the armed forces. This is not the profile of a regular citizen. [32] The RPD erred in concluding that the appellant was not a member of the military. [33] The RPD erred in concluding that, because the appellant was in the XXXX XXXX, [translation] "she is not currently a member of the military, but she could be called up to serve her country during wartime". During her testimony, the appellant was asked what her status in the army was. The appellant replied that she was a XXXX, but there was no exploration of whether being a XXXX meant being part of the military or not. [34] This conclusion is not supported by any evidence, and the RAD is unable to see on what information the RPD relied to reach this conclusion or, in light of the appellant's profile, what reasoning led it to conclude that the armed forces did not consider her to be one of their own. The RAD finds that this conclusion was hasty and without merit and that the RPD committed an error. [35] In its analysis, the RPD did not consider the fact that the appellant fears ending up being unable to find a job. [36] In the RAD's opinion, the RPD erred in not analyzing this factor. The appellant stated and suggested in various documents that, in addition to imprisonment and interrogation, she also feared never being able to work again, having been put on a black list because she deserted a ship and because of her profile. Even though the RPD confirmed the appellant's credibility, it did not deal with the appellant's fear of no longer being able to work should she return to Cuba in its decision. The RPD erred in its analysis. [37] The RPD erred in conducting a selective review of the evidence. [38] Since the RPD did not consider the appellant's specific profile, it also did not take the following excerpt from the Country Report 2013 into account: "In the case of military or police defectors or those traveling with children, the punishment could be more severe" (page 28 of the RPD record). [39] Instead, the RPD preferred another excerpt from the Country Report 2013 (page 28 of the RPD record) indicating that the sanctions for unauthorized departure from Cuba included up to three years' imprisonment or a fine but that most people caught attempting an unauthorized departure were detained for two or three weeks and fined. [40] In the RAD's opinion, the RPD erred in not correctly assessing the appellant's profile and the authorities' perception of her defection, concluding that the appellant would be treated like a regular citizen without a specific profile and that she would possibly face only two or three weeks in prison and a fine and would consequently only be charged under a law of general application. [41] As the appellant points out in her memorandum, the documentation offers many examples of people being considered traitors to Cuba, and dissidents are invariably punished regardless of the degree of their dissidence and often suppressed for very little. Cuba is a dictatorship that tangibly and tirelessly controls its institutions. The coming into power of Raoul Castro did not relax the reigning repression. Any person unwilling to cooperate may be called antisocial and may be harassed and possibly imprisoned (see pages 176 to 185 of the RPD record). [42] Since the appellant comes from a dictatorial regime, the RAD is of the opinion that, since she fears the state, neither an internal flight alternative nor protection from the state she is afraid of is available to her. [43] Even though the appellant is not a dissident as such, she nonetheless betrayed the trust the state put in her, and given her profile and her political background and involvement, in light of the documentary evidence as a whole, the RAD is of the opinion that there is a serious possibility that, should she return to Cuba, she would be subjected to treatment amounting to persecution, given her political opinion (about which she was very vocal at the hearing) and the view the state would hold of this opinion, given her profile and her defection. REMEDY [44] Pursuant to subsection 111(1) of the IRPA, the RAD sets aside the RPD's determination and substitutes a determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX is a "Convention refugee" under section 96 of the IRPA. [45] The appeal is allowed. Roxane Cyr Roxane Cyr May 12, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, para. 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Idem, para. 33. 5 Huruglica v. Canada (Citizenship and Immigration), MCI 2014 FC 799. 6 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 7 Supra, footnote 5, para. 55. 8 Idem, para. 38. 9 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 10 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para 46. 11 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 12 Supra, footnote 10, para 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB4-04904 2 SAR.25.02 (2014.09.11) Disponible en français