MB4-03124

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 : MB4-03124 MB4-03125 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision April 21, 2015 Date de la décision Panel Me Louis Cousineau Tribunal Counsel for the persons who are the subjects of the appeal Me Claudia Andrea Molina Conseil des personnes en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du Ministre REASONS FOR DECISION [1] The appellants, XXXX XXXX XXXX and XXXX XXXX XXXX, citizens of Cuba, are appealing against the decision of the Refugee Division (RPD) rejecting their claim for refugee protection. They are requesting that the Refugee Appeal Division (RAD) set aside the RPD's determination, allow their refugee protection claim and grant them refugee status. [2] The appellants submitted no new evidence within the meaning of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). However, as an alternative conclusion, they are requesting that a hearing be held. [3] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [4] Under subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that the appellants are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [5] The appeal is dismissed. FACTUAL BACKGROUND [6] In their Basis of Claim Form (BOC Form), the appellants alleged that they were abused by Cuban authorities. They alleged that, when they finished school, they had to perform mandatory social service for a low wage of 250-300 pesos a month. After they finished school, they joined a band called "XXXX." They had to give performances and participate in political activities. Also, XXXX's shows often took place in the north, in coastal areas, where there was a heavy police presence because of the many Cubans who flee by boat. The members of XXXX would be stopped near these areas by police, who would order them to get out of the vehicle; they would search the car, ask questions for identification purposes and carefully examine the musical instruments. All of that could sometimes take two hours. In this regard, one of the appellants, Ms. XXXX XXXX, stated in her BOC Form that the police were afraid that the band members might be hiding fish and spiny lobsters, and that every month, in the XXXX XXXX XXXX area, the band members could be suspected of wanting to leave the island on a boat, like some Cubans do. [7] In 2011, XXXX allegedly played a song by Célia Cruz at a political rally. Ms. XXXX XXXX stated in her BOC Form that people in her neighbourhood had talked about this event and that she was called a counter-revolutionary for daring to play Celia Cruz. In addition, another outcome was that the band was sanctioned and could not perform for two months; after that, the band had fewer concerts than before, and at some of the concerts, the police would escort them and would stay near the stage. [8] Ms. XXXX XXXX stated in her BOC Form that her work with the band meant that she had to wear makeup and a sexy outfit. On her way to or from work, police would stop her for prostitution because of how she looked. She is a Cuban mulatto, and she allegedly received racist insults from police officers but said nothing. One day, a neighbour allegedly stole some money from Ms. XXXX XXXX, who allegedly followed her home and demanded that she give her back the money. The police allegedly intervened and charged her with trespassing on her neighbour's property. The appellant was supposedly taken to the hospital to determine whether she was drunk. She was released a few hours later, on the condition that she report to the police station to sign and that she keep the peace, with no explanation or apology. The appellant managed to get the charges against her dropped. [9] While they were in XXXX, the appellants travelled outside Cuba. Ms. XXXX XXXX made three trips-one to the Bahamas in 2008 and two to Canada, in 2012 and in XXXX 2013. Ms. XXXX XXXX travelled to Canada in 2012 and returned here in XXXX 2013. The appellants claimed refugee protection on October 25, 2013. Impugned decision [10] On July 18, 2014, the RPD rejected the refugee protection claim; its conclusions can be summarized as follows: - The RPD member found that the appellants lacked credibility in relation to the allegations of sexual abuse by Cuban authorities, because of omissions; - The RPD member found that certain allegations by the appellants did not constitute persecution; - In its analysis of the arguments relating to the allegation that the appellants are refugees "sur place," the RPD member found as follows: a) The appellants' allegations that they played a song by Célia Cruz in Canada were not credible, given the omission of this allegation from their BOC Form; even if they had done so, the appellants would not suffer treatment that would constitute persecution or be subjected to a risk under subsection 97(1) of the IRPA; and the appellants' allegations that they would be barred from Cuba or imprisoned if they returned to the country were not supported by the documentary evidence. b) As regards the argument that certain people, such as members of the group Ladies in White, are persecuted, the appellants did not establish a connection between themselves and the activists in the Ladies in White. - The RPD member found that the arrest of Ms. XXXX XXXX for trespassing on her neighbour's property was an isolated incident. - The RPD found that the appellants' failure to claim refugee protection in 2012, on a previous trip, was inconsistent with the behaviour of someone who fears for their life or a risk to their life and drew a negative inference from it. GROUNDS OF APPEAL [11] In their memorandum, the appellants assert that the RPD made errors of fact, law and procedural fairness, as follows: - There was a breach of procedural fairness and natural justice in that the panel unfairly found that no event took place in connection with the performance of the music of Célia Cruz by the appellants in Montréal, even though a video of a portion of the show was adduced and admitted into evidence and, in the video, the appellants did in fact perform the song in question. - There was a breach of procedural fairness and natural justice in the refusal to admit evidence, then admitting it and ultimately finding that there could not have been a prospective risk of persecution. - There were unreasonable delays in rendering the decision. - There was an error in discounting the concept of refugee "sur place," contrary to the teachings of Professor XXXX XXXX. - There was an error of fact in stating that the appellants did not mention the abuse they suffered at the hands of police; - There was an error of law in relation to what constitutes arrest, detention and interception by the police, which constitute persecution. - There was a failure to apply the legal principles relating to the failure to claim refugee protection at the first opportunity. HEARING BEFORE THE RAD [12] In the memorandum filed, the appellant's lawyer did not indicate that new evidence would be presented before the RAD, but in her conclusions, as an alternative, she requested permission for the appellants to be heard on the merits of their refugee protection claim.1 [13] At the outset, it is appropriate to point out that, under subsection 110(3) of the IRPA, the RAD generally proceeds without a hearing, on the basis of the record of the proceedings of the RPD. Also, under subsection 110(6) of the IRPA, the RAD may hold a hearing when evidence presented on appeal is found to be admissible, if it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, if it is central to the decision with respect to the refugee protection claim and if it justifies allowing or rejecting the refugee protection claim. [14] In this case, since the appellants did not submit any new evidence within the meaning of subsection 110(4) of the IRPA, there is no cause to hold a hearing before the RAD.2 SCOPE OF THE APPEAL [15] First of all, I have considered the arguments of the appellants' lawyer regarding the standard of intervention to be applied by the RAD; those arguments refer to Huruglica.3 [16] Also, in my analysis of the scope of the appeal before the RAD, I considered the provisions of the IRPA and the case law on this matter. [17] The IRPA does not expressly set out the standard of intervention the RAD is to apply when it reviews RPD decisions. The introduction to subsection 110(1) of the IRPA reads as follows: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. [18] In addition, in relation to decisions of the RAD, as set out in subsection 111(1) of the IRPA, the RAD shall make one of the following decisions: confirm the determination of the RPD; set aside the determination and substitute a determination that, in its opinion, should have been made; or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. [19] Also, my interpretation of the provisions of subsection 111(2) of the IRPA is that Parliament's intent was to favour the finality of decisions. In fact, the RAD can refer the matter to the RPD for re-determination only if the decision of the RPD is wrong in law, in fact or in mixed law and fact, and it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD. [20] To date, the Federal Court has rendered several decisions on the standard of review or intervention the RAD should apply and on its role when a decision of the RPD is appealed before it. [21] What emerges from those decisions is that an appeal to the RAD is not in the nature of a judicial review. The RAD makes an error when it applies the reasonableness standard of review, and the RAD must do its own assessment of all the evidence.4 [22] From the decisions rendered to date by the Federal Court regarding the standard of review or intervention applicable to the RAD, two lines of case law have emerged. [23] First, in Alvarez and Eng,5 rendered on July 17, 2014, the Honourable Justice Shore, relying on the decision of the Quebec Court of Appeal in Parizeau v. Barreau du Québec,6 wrote as follows: [27] ... [T]he RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts.... [28] 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. Contrary to a court exercising a superintending and reforming power over public bodies, the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error.... [24] In Spasoja,7 the Honourable Justice Roy wrote that "the creation of an appellate level between an administrative jurisdiction and judicial review would suggest that Parliament wanted to create something different between those two levels.... [T]he RAD does not rehear the evidence that was before the RPD (moreover, it is prohibited by the Act) and, without clear indication, it also cannot duplicate the judicial review function."8 He adds "...this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety.... An error of fact must be palpable and overriding to succeed on appeal. The standard of correctness prevails for questions of law...."9 [25] In that same decision, the Honourable Justice Roy goes on to state: "...It seems to be preferable to focus on the standard of palpable and overriding error in appeals on questions of fact. There is nothing new in proposing that an appeal tribunal show deference when a body whose decision is being appealed flows from considerable discretion such as assessing credibility. The law is clear: the RAD does not hear witnesses except in very exceptional and specific cases. The credibility to be given to the witnesses heard by the RPD is its responsibility and the RAD, on appeal, must show deference (Lensen v Lensen, [1987] 2 SCR 672; R v Burke, [1996] 1 SCR 474)."10 [26] In addition, the Honourable Justice Roy states that "the appellant must identify the questions on which the appeal will focus. It will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)."11 [27] And, in Huruglica,12 the Honourable Justice Phelan states the following: "Unlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which 'in its opinion, should have been made'. One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis."13 [28] The Honourable Justice Phelan adds that "...the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision."14 [29] As for the deference that the RAD owes to the RPD's findings, the Honourable Justice Phelan indicates that it may well be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative."15 Nevertheless, when it comes to interpreting the documentary evidence on country conditions, the Honourable Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment."16 [30] In my analysis, as to my role and functions as a member of the RAD, I have considered the provisions of the IRPA and all the Federal Court decisions on the RAD. Thus, it is my opinion that the RAD is a specialized tribunal and that I must review all the evidence to determine whether the appellant is a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA, and therefore, whether the RPD's decision is well founded in light of the evidence presented to the RPD as well as any new evidence within the meaning of subsection 110(4) of the IRPA, if applicable. In the case at hand, it should be noted that the appellant did not present any new evidence. [31] Also, in my examination of this case, I will defer to the RPD's findings when the appellants' credibility is decisive or determinative and/or when the RPD enjoys a particular advantage in reaching its conclusion. In addition, if there are errors on questions of law or if there are erroneous findings or findings that are not supported by the evidence on questions of fact or questions of mixed law and fact that are central to the refugee protection claim, I will intervene in accordance with the provisions of subsections 111(1) and 111(2) of the IRPA. ANALYSIS [32] In my analysis, I will first address the matter of a breach of procedural fairness and natural justice, then, the matter of an unreasonable delay in rendering the decision, the findings on abuse by police authorities, including the matters relating to the arrests/interceptions, sexual abuse and touching, the consequences of performing a song by Célia Cruz in Cuba, and the matters relating to mandatory social service, performances at political rallies and the attitude of certain people toward the appellants. I will then deal with the findings on the concept of refugee "sur place" and then with the failure to claim refugee protection at the first opportunity. [33] I have reviewed the RPD's reasons for decision, and I have listened to the recording of both hearings held before the RPD and have reviewed the transcript filed, which is consistent with the statements made at the hearing. I have also read and analyzed all of the evidence on the record, and I have considered Guideline 4 of the Chairperson.17 I. Breach of procedural fairness and of natural justice [34] Did the RPD err in its analysis by providing inadequate reasons for decision because it failed to consider relevant evidence? [35] First of all, the appellants' lawyer referred to an excerpt of the RPD's decision that stated that the RPD did not believe that the appellants had sung a song by Célia Cruz in Montréal. The lawyer pointed out that the RPD member did not state at the hearing that she did not believe that the appellants had given such a performance or that she was not admitting the evidence adduced. Also, the lawyer is of the opinion that the RPD disregarded the evidence adduced in concluding that the appellants would not face treatment amounting to persecution for having played a Célia Cruz song before leaving the band and claiming refugee protection. [36] In this regard, I examined the jurisprudence, including Malveda, in which Justice Russell stated, among other things, that the RPD "is under an obligation to provide reasons that are adequate in the circumstances." "However, when assessing the adequacy of reasons, those reasons 'must not be held to a standard of perfection or read microscopically' .... Thus, in assessing the adequacy of the reasons provided, a reviewing Court must look to the overall reasoning process contained in a decision."18 [37] In addition, there is a presumption that the RPD considered all the documentary evidence that was before it and that it was not required to mention every piece of evidence.19 On the other hand, as stated in Cepeda-Gutierrez, "the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact 'without regard to the evidence'...."20 [38] Based on the record in this case, the RPD accepted all of the evidence adduced by the appellants. Although the RPD did not expressly mention certain pieces of evidence in its decision, the fact remains that, based on my examination of all of the evidence and of the overall reasoning process contained in the decision, I am of the opinion that the RPD did not err in not expressly mentioning the evidence cited by the appellants' lawyer in her memorandum, for the following reasons. [39] First of all, the RPD considered the appellants' testimony and explanations regarding their failure to mention this performance in their BOC Form. Furthermore, the RPD questioned the appellants about the evidence adduced. In addition, the RPD accepted all the evidence adduced, including evidence that was filed late, at the hearing held on February 21, 2014, while taking into account the RPD Rules and the explanations provided by the lawyer. [40] In addition, in my opinion, the RPD's finding that the appellants lacked credibility does not indicate that it did not consider all of the evidence, given, among other things, that the RPD did not rely on just the appellants' testimony in its analysis and that it arrived at an alternative conclusion-that even if the appellants had sung a song by Célia Cruz, they would not face treatment that would constitute the risks set out in section 96 and subsection 97(1) of the IRPA. In doing so, the RPD analyzed and referred to the documentary evidence in the National Documentation Package on the repressive treatment of people whom Cuban authorities consider to be dissidents, including activists and artists, evidence similar to what the appellants presented. [41] So, having considered the overall reasoning process contained in the decision, I am of the opinion that the RPD did not err by not specifically mentioning certain pieces of documentary evidence cited by the appellants' lawyer. II. Unreasonable delays in rendering the decision [42] The appellants' lawyer argued that, given the short duration of the hearing (two hours) and the lengthy delay in rendering the decision, the RPD committed a breach of procedural fairness. In support of her arguments, she referred to Guideline 7 of the Chairperson.21 [43] First of all, having listened to the recordings of the hearing, which took place in two sittings, it lasted more than three hours. Also, during the hearing, the lawyer had the opportunity to question the appellants and to make oral submissions and additional written submissions.22 Therefore, I am of the opinion that the mere allegation that there was a breach of procedural fairness is insufficient to establish it. [44] Furthermore, in relation to the five months it took to render the decision, I am of the opinion that the appellants did not establish a breach procedural fairness for the following reasons. [45] First, I am of the opinion that the appellants did not establish how this [translation] "delay" breached procedural fairness. Also, although Guideline 7 states that "RPD members will render oral decisions and reasons at the end of the hearing 'unless it is not practicable to do so'," in my opinion, this provision must not be taken in isolation but must take into account a number of factors, including the complexity of the case. [46] In addition, in my analysis, I considered the Federal Court's decision in Molnar23 with respect to a provision of the Immigration Act, which was in effect at the time. In this case, the applicant alleged that the delay in rendering the decision had prejudiced the assessment of his claim because his testimony did not have the same impact after such a long delay. The Court rejected the applicant's assertions. The Honourable Justice O'Keefe's ruling included the following: [40] The wording "as soon as possible" does not set a specific time frame for board decisions to be made. There is no doubt that delays in giving board decisions can be frustrating for some refugee claimants. There is no evidence before me that the Board did not render its decision "as soon as possible" after the hearing. The delay of almost eleven months may have been as a result of the workload of the Board. As well, there is no indication that the Board had forgotten the impact of the testimony. I am of the opinion that there has been no denial of natural justice in this respect. III. Findings in relation to abuse by police authorities [47] In this section, I will address the appellants' various allegations relating to the arrests/interceptions, sexual abuse and sexual touching, the consequences of having sung a song by Célia Cruz in Cuba, mandatory social service, performances at political rallies, and looks of disdain toward the appellants upon their return to Cuba after a trip to Canada. Arrests/interceptions by police authorities [48] The RPD found credible the allegations that the members of the band XXXX, including the appellants, were intercepted on a number of occasions on their way to their performances. During these checks by police authorities, officers would search the vehicle and question the occupants about their identification. The appellants testified that, during these checks, the police were checking for trafficking of fish and spiny lobster and that many emigrants left from the areas where they were performing. Also, Ms. XXXX XXXX testified that, because of how she was dressed, she was accused of prostitution. Also, Ms. XXXX XXXX alleged that she was subjected to racist comments by a police officer because she is mulatto. In addition, Ms. XXXX XXXX testified about the circumstances of her arrest/interception by police officers for trespassing at her neighbour's home. [49] The RPD also found that these interceptions did not constitute persecution within the meaning of section 96 of the IRPA. For the reasons that follow, I agree with the RPD's findings. [50] First, the concept of persecution has been interpreted numerous times in the jurisprudence. For example, in Vasallo,24 the Honourable Justice Bédard describes it as follows: The concept of persecution is not defined in the IRPA. In Canada (Attorney General) v. Ward, [1993] 2 SCR 689 at paragraph 63 (available on CanLII), the Supreme Court defined the concept of persecution as a "sustained or systemic violation of basic human rights demonstrative of a failure of state protection." In order to constitute persecution, the treatments in question must be serious and repetitive or systematic.... [51] Also, in terms of the concept of discrimination, paragraph 54 of the Handbook on Procedures and Criteria for Determining Refugee Status25 states as follows: ...It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. [52] Also, the jurisprudence states that "the dividing line between persecution and discrimination or harassment is difficult to establish.... It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved."26 [53] In addition, the appellants' lawyer is of the opinion that these checks were arrests, and the appellants, in their testimony, described them as interceptions. [54] I am of the opinion that what is important is to determine whether these [translation] "run-ins" with the police constitute persecution under section 96 of the IRPA and to look at the seriousness of the harm suffered. [55] First of all, in terms of the arrest of Ms. XXXX XXXX, after she trespassed at her neighbour's home, I am of the opinion that this arrest was an isolated incident and that there is no evidence of excessive punishment against her. In fact, she was released shortly after; also, there is no evidence that she was otherwise punished after this incident of trespassing. Furthermore, she continued to be part of the band XXXX, which, according to the appellants, was owned by XXXX XXXX XXXX XXXX XXXX XXXX,27 and she was able to leave to go to Canada with this band. [56] Furthermore, although the appellants may have been [translation] "called" prostitutes because of what they were wearing and although Ms. XXXX XXXX was subjected to racial insults by a police officer, the evidence shows that, except in the case of the arrest mentioned earlier, the appellants were not taken to a police station and faced no charges or other sanctions in connection with these run-ins with police. Also, it is worth noting that the appellants were able to continue their career as musicians with XXXX and to travel to Canada. [57] I am therefore of the opinion that these "run-ins" with the police, even taken cumulatively, do not meet the threshold of seriousness to constitute persecution within the meaning of section 96 of the IRPA, and I agree with the RPD's conclusions in that regard. Conclusions on the matter of sexual abuse and touching by police officers [58] The RPD did not find the appellants' allegations on this point credible, given that they were omitted from their BOC Form. The appellants' lawyer, in her memorandum, disagrees, alleging, among other things, that the BOC Forms refer to police searches and that Ms. XXXX XXXX stated in her BOC Form that she was called a prostitute because of the clothes and make-up she was wearing. Also, the lawyer pointed out that, at the hearing, the appellants had testified that they were nervous and that these alleged incidents of touching were sensitive and a source of shame. [59] The RPD confronted the appellants about why they did not mention these incidents of sexual abuse and touching, and it did not find the explanations satisfactory. [60] I have considered all of the evidence, including Guideline 4 of the Chairperson, the statements made at the hearing and the transcript, and I agree with the findings of the RPD for the following reasons. [61] First, although the appellants stated that they were searched at police checks, there is no allegation in their BOC Form of this sexual abuse or touching during these searches. Also, I note that, with the exception of one change28 in Ms. XXXX XXXX BOC Form regarding the time of her arrest after the trespassing incident, their BOC Form was not amended. Although the appellants claimed that they were nervous and that this was a sensitive and shameful matter, the fact remains that they provided many details in their BOC Form about their various allegations to support their refugee protection claim, including, for example, situations that existed before they joined the band XXXX, their participation in political rallies, and searches and police checks, and I am of the view that if the allegations of sexual abuse and touching were true, they would have mentioned them in their BOC Form, given their importance. Also, like the RPD, I bear in mind that the appellants are educated women and that they were represented by an experienced lawyer. [62] Therefore, for all of these reasons, I am of the opinion that the allegations of sexual abuse and touching by police are not credible. Consequences as a result of a Célia Cruz song in Cuba [63] Ms. XXXX XXXX stated in her BOC Form that, on her 16th birthday (in XXXX 2002), when she was playing some music by Célia Cruz, a police officer came and told her to turn the music off. Her brother, who allegedly responded that it was the appellant's birthday, was arrested and detained for three days. For her part, Ms. XXXX XXXX testified that XXXX had played a song by Célia Cruz during a performance in Cuba, in 2011, without authorization to do so. As a result, the band could not perform for two months. After that, when the band went to play concerts in other municipalities, the police escorted them and remained near the stage. [64] In my view, for the following reasons, these are not allegations of acts that amount to persecution. [65] First, on the matter of the intervention of a police officer in 2002, although Ms. XXXX XXXX's brother was detained for three days, the police did not bother the appellant. In addition, she continued her studies and was able to continue her career as a musician with the band XXXX, which is owned by the Cuban government, and leave Cuba on three occasions. In terms of XXXX's performance in Cuba, there is no evidence that the band members were arrested or detained by the authorities and, although they could not play for two months in 2011, the band continued to perform, even though they were there under escort and the police were near the stage. [66] Consequently, for these reasons, I am of the opinion that the seriousness of the alleged treatment does not meet the threshold of persecution. Conclusions on mandatory social service, performances at political rallies, and looks of disdain upon their return to Cuba after a trip to Canada [67] The appellants alleged that they had to perform a period of mandatory social service at a low wage after they finished school, that they had to perform with the band XXXX at political rallies and that they had no choice. Also, Ms. XXXX XXXX alleged that when she returned from Canada in 2012, some officials and neighbours looked at them with disdain. [68] Based on my analysis above,29 in terms of what constitutes persecution, I am of the opinion that these acts do not meet the threshold of seriousness to constitute persecution. First, the appellants were able to finish school; they pursued their career as musicians with the band XXXX, which is owned by XXXX XXXX XXXX XXXX XXXX. In addition, despite these looks of disdain, Ms. XXXX XXXX continued her work with the band and to travel outside Cuba in 2013. IV. Conclusions regarding "refugees sur place" [69] The appellants argued that the RPD erred in its analysis in finding that they were not "refugees sur place." I will look at this issue in view of all of the evidence, as well as the jurisprudence on this issue. Basically, the appellants put forward two main arguments: that they will be persecuted by Cuban authorities if they return because they performed a song by Célia Cruz in Montréal with the band XXXX and because they did not return to Cuba with the band. [70] First of all, for the following reasons, I do not agree with the RPD's finding that this alleged performance in Montréal was not credible. In addition to the appellants' testimony, the RPD member accepted pieces of evidence30 that, according to the appellants' testimony, establish that such a performance occurred. Also, the RPD accepted the allegations that the appellants were members of XXXX. It was also admitted into evidence that the appellants came to Canada in XXXX 2013 with the band. Also, the videos show that XXXX gave some concerts at the XXXX XXXX XXXX 2013. So, I reject this credibility finding. [71] Nevertheless, I agree with the RPD's alternative conclusion that [translation] "even if they had done so, the claimants would not necessarily suffer treatment that would amount to persecution, as examined above, or that they would be subjected to a risk set out in paragraph 97(1)(a) or (b)," for the following reasons. [72] First, the appellants testified that they gave a performance after the departure of their colleague XXXX XXXX,31 during which they allegedly sang a song by Célia Cruz. Also, the appellants testified that, in a performance it gave before returning to Cuba, XXXX sang a song by Célia Cruz and that when they returned, the band could not perform for four months. [73] In my opinion, Vasallo may be useful in examining the appellants' arguments. In it, the Federal Court heard the case of a member of a dance troupe invited to perform shows in Canada. At the end of the trip, he failed to leave with the other members of the group and claimed refugee protection. In her decision, the Honourable Justice Bédard referred to certain decisions: In Valentin v Canada (Minister of Employment and Immigration) (1991), [1991] 3 FC 390 (available on QL) (CA), the Federal Court of Appeal found that a person's fear of a criminal sanction for exiting his or her country illegally or overstaying the stay authorized by his or her exit visa is not, in itself, a reasonable basis for fear of persecution.32 ... In Donboli,33 above, Justice Dawson...indicated that, in some circumstances, it was necessary to further analyze and examine whether punishment for an illegal exit from a country could constitute a reasonable basis for a fear of persecution. She stated the following: 4 In Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 the Federal Court of Appeal held that punishment for an illegal exit from a country is not in itself a basis for a well-founded fear of persecution, when the punishment arises out of a law of general application. However, where a proper evidentiary basis exists it is necessary to consider whether excessive or extra-judicial punishment for an illegal exit could constitute a reasonable basis for a well-founded fear of persecution.... [74] According to the documentary evidence,34 as of January 14, 2013, Cuban nationals no longer need an exit permit or foreign letter of invitation in order to leave Cuba. Also, the period of time Cubans are permitted to stay abroad was extended from 11 to 24 months. [75] According to the documentary evidence,35 what happens to failed asylum seekers in Cuba after they return depends upon what they did before they left. If they were good citizens before they left, very little if anything is done to them. However, if the asylum seeker was wanted for a felony before they left, they will be arrested by the authorities and dealt with accordingly. In addition, until the amendments extending the period from 11 months to 24 months, Cubans who remained abroad for longer without obtaining permission to do so could face penalties including a fine and a criminal record. Since the reforms, however, that has now stopped. [76] I have considered all of the evidence, including the documentary evidence36 submitted by the appellants, and, like the RPD, I am of the opinion that the evidence has established that human rights activists, including artist activists who are considered dissidents by Cuban authorities, face acts of repression, such as short-term arrests and criminal prosecutions. The appellants, however, were not subjected to such treatment, and I am of the opinion that, if the Cuban authorities considered the appellants to be dissidents, the appellants would not have been allowed to stay in the band XXXX, which, according to them, is owned by a government agency, and to have travelled outside the country on several occasions. [77] Also, in relation to the appellants' claims about the activist group known as Ladies in White and their treatment by Cuban authorities, the appellants testified that they did not belong to this group. In the circumstances, like the RPD, I am of the view that the appellants did not establish a link between themselves and this group. [78] Based on my analysis, the appellants are not wanted for a felony. Furthermore, although the appellants alleged that XXXX had performed a song by Célia Cruz in Cuba and in Canada, there is no evidence that the band members were arrested or faced criminal sanctions because of their performance. According to the appellants, the sanctions imposed were that the band was not authorized to give concerts for two months in 2011 and, on their return to Cuba in 2013, for four months. Consequently, I am of the opinion that these sanctions do not meet the threshold of persecution. Also, concerning the fact that they did not return with the band XXXX, in my view, based on the documentary evidence, this is not an aggravating factor in the appellants' situation, because, according to the documentary evidence cited earlier,37 Cuban authorities have been handling things differently since the reforms of January 2013; I am also of the opinion that there is no evidence that it would be otherwise in the case of the appellants. [79] Consequently, I am of the opinion that the appellants have not established that there is a serious possibility of persecution on a Convention ground, or that, on a balance of probabilities, that they would be personally subjected to a risk to their life, to a risk of cruel and unusual treatment or punishment, or to a danger of torture upon their return to Cuba. Failure to claim at first opportunity [80] The RPD concluded that the appellants' failure to claim refugee protection in 2012, on a previous trip, was not behaviour consistent with that of people who fear for their life or a risk to their life, and therefore drew a negative inference from it. [81] The appellants' lawyer argued that the RPD erred in its conclusion. When confronted by the RPD member, the appellants testified that they felt like prisoners and that the agent accompanying them had seized their passport in 2012. [82] First, I agree with the lawyer that this matter is relevant, but not determinative. However, even though it is not determinative, this failure to claim refugee protection in 2012 is still something that the RPD could consider in its determination. Based on my analysis of the appellants' testimony, their situation in 2012 is somewhat different from what it was in 2013, because the Cuban official who was accompanying them allegedly left before the band XXXX did and because their passports were given to the director, who, on request, gave them to the appellants, and then they claimed refugee protection. In my opinion, in the circumstances, the appellants' explanations seem satisfactory to me, and I am of the opinion that there is no negative inference to be drawn in this regard. CONCLUSION [83] Having reviewed all of the evidence, both oral and documentary, for the reasons given above, I agree with the determination of the RPD. [84] Consequently, under subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that the appellants are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" under subsection 97(1) of the IRPA [85] The appeal of XXXX XXXX XXXX and XXXX XXXX XXXX is dismissed. Louis Cousineau Me Louis Cousineau April 21, 2015 Date IRB translation Original language: French 1 Appellants' record: memorandum, page 152. 2 Sajad v. M.C.I., No. IMM-926-14, Honourable Mr. Justice Shore, November 21, 2014; 2014 FC 1107, at paragraph 17. 3 Huruglica v. M.C.I., 2014 FC 799. 4 Particularly Eng v. M.C.I., 2014 FC 711; Alvarez v. M.C.I., 2014 FC 702; Huruglica v. M.C.I., 2014 FC 799; Spasoja v. M.C.I., 2014 FC 913. 5 Ibidem. 6 Parizeau v. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 7 Supra, footnote 4. 8 Ibidem, paragraph 25. 9 Ibidem, paragraph 39. 10 Ibidem, paragraph 40. 11 Ibidem, paragraph 43. 12 Supra, footnote 4. 13 Ibidem, paragraph 47. 14 Ibidem, paragraph 54. 15 Ibidem, paragraph 37. 16 Ibidem, paragraph 38. 17 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 25, 1996, Immigration and Refugee Board of Canada. 18 Malveda v. M.C.I., 2008 FC 447, the Honourable Justice Russell, paragraphs 40 and 41. 19 Ibidem, paragraph 43, in which the Honourable Justice Russell cites Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL). 20 Cepeda-Gutierrez v. M.C.I., [1998] F.C.J. 425 (QL), paragraph 17, cited by, among others, the Honourable Justice Russell in Malveda, supra, at paragraph 44. 21 Chairperson's Guideline Concerning Preparation and Conduct of a Hearing, Immigration and Refugee Board of Canada, November 2003. 22 RPD record (pages 236 to 237): letter from lawyer dated December 17, 2013. 23 Molnar v. M.C.I., 2005 FC 98. 24 Vasallo v. M.C.I., 2012 FC 673; Justice Bédard, No. IMM-8526-11, May 31, 2012, paragraph 15. 25 Handbook on Procedures and Criteria for Determining Refugee Status. United Nations High Commissioner for Refugees. 26 Sagharichi v. M.E.I., (1993), 182 N.R. 398 (F.C.A.), cited in Vasallo, at footnote 24, by Justice Bédard at paragraph 17. 27 Appellants' record, transcript: page 58, lines 242 to 262. 28 Appellants' record, transcript: page 54, lines 111 to 122. 29 Particularly, in my paragraphs 50 to 57. 30 Appellants' record, memorandum (pages 132 to 135): exhibits C-1 to C-3. 31 Appellants' record, transcript: (page 109): lines 1644 to 1648. 32 Vasallo v. M.C.I., 2012 FC 673; Justice Bédard, No. IMM-8526-11, May 31, 2012, paragraphs 20 and 22. 33 Donboli v. M.C.I., 2003 FC 883, 124 ACWS (3d) 1126. 34 National Documentation Package on Cuba, May 31, 2013, Tab 14.1: Cuba: New exit-permit rules for Cuban citizens, including requirements and procedures; situation of Cuban citizens who left under the previous rules and are in violation of the law; whether doctors encounter obstacles to obtain exit permits because of their profession; Response to Information Request, CUB104288.E, Immigration and Refugee Board of Canada, February 21, 2013. 35 Idem, Tab 14.2: Treatment by authorities of failed asylum seekers that have returned to Cuba, including the treatment of family members that remained in Cuba; Response to Information Request, CUB104290.E, Immigration and Refugee Board of Canada, February 19, 2013. 36 Appellants' record: memorandum (pages 135 to 137); RPD record (pages 201 to 225): particularly exhibits C-6 to C-10. 37 See footnote 35. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-03124 MB4-03125 21 RAD.25.02 (2014.09.11) Disponible en français