TB5-08090

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 : TB5-08090 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 08, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Diego Pezua Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, (the Appellant), who is a citizen of Cuba, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted any new evidence in support of his appeal, nor is he requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is, however, asking the RAD to find him to be a Convention refugee or a person in need of protection, or in the alternative, that the matter be remitted to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. Background [3] The Appellant's claim is based on his refusal to join the Communist party and the expression of his political views against the government. [4] In 1998, the Appellant as a result of his refusal to join the Youth Communist League was required to complete his studies in another province, which was far from his family and friends. [5] Later, the Appellant worked as an information technologist with the XXXX XXXX XXXX XXXX XXXX. When he refused to join political activities, a fine was imposed, and subsequently, the Appellant chose to leave his place of work. [6] In 2006, the Appellant became the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and again he was pressured to join the Communist Party and interviewed by a CI agent about his political leanings. [7] In XXXX 2011, the Appellant travelled to Canada for employment purposes, however in 2012, he was refused and a more politically loyal individual was chosen. Following this, the Appellant began to participate in a more active manner by speaking out against the government and in 2013, he was asked by state agencies to act as an informer on their behalf. As well, the Appellant suffered discrimination at his place of work due to his refusal to participate in pro-Communist Party activities. His phone calls and electronic communications began to be monitored and he was demoted from his position at his workplace in XXXX 2013. Nevertheless, he was permitted to travel to Toronto on business in March 2014. [8] However, on XXXX XXXX, 2014, the Appellant's house was attacked by pro-Communist Party members who threw rocks at the windows and also a few days later, state authorities attended the Appellant's residence and threatened to detain him. [9] The Appellant applied for and obtained a new Cuban passport and a Canadian visa and arrived in Canada on XXXX XXXX, 2014 and applied for refugee protection on January 7, 2015. ROLE OF THE RAD [10] Counsel submits that the RAD's role is to review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD has, in fact, taken guidance from the Federal Court in Huruglica1 wherein Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, 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. 55. 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 an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT * Did the RPD err in its credibility findings? * Did the RPD err in its finding that the Appellant suffered from discrimination, and not persecution? Credibility [11] The RPD noted that the Appellant's testimony revealed that he departed Cuba following an incident that occurred in XXXX 2014, when he was allegedly visited by state authorities at his residence and he was threatened with imprisonment. This factor was not mentioned in the Appellant's BOC and when confronted with this omission, the Appellant's counsel pointed out a different incident in which the state authorities attended the Appellant's residence in XXXX 2014. The RPD acknowledged that the Appellant's wife corroborated both of these incidents during her testimony, however the threat of incarceration during the August visit was not corroborated. [12] The RPD also noted the lack of evidence (photographs) of the damage to the Appellant's home when rocks were thrown through the windows. This was noted specifically in light of the fact that the Appellant stated in his BOC form that this evidence was available. [13] Notwithstanding the above, however, the RPD accepted that most of the incidents as described in the Appellant's BOC form did, in fact, occur. Moreover, the RPD while noting that the Appellant's testimony was at times vague with respect to the type of activities in which the Appellant was engaged, the RPD found that the Appellant held a political opinion which was contrary to the Government of Cuba and that these opposing views were expressed when he had the opportunity. [14] However, the RPD questioned the nature of the attack on XXXX XXXX, 2014 and also found that the threats made by the police in August 2014 were exaggerated. [15] After considering the foregoing, the RPD considered whether or not, even when viewed cumulatively, the incidents as described, rose to the level of persecution and its conclusion was that it did not. [16] The Appellant submits that the RPD erred by failing to state "what about" the threat of arrest it believed and what it believed to be exaggerated. Likewise, it is submitted by the Appellant that the RPD erred by failing to state "what about" the incident where rocks were thrown at the residence, it questioned. [17] After a review of the audio recording of the proceedings, the RAD concurs with the RPD that although the incidents were accepted as having occurred, it was the nature of the incidents to which the RPD was referring. The RAD concurs with the RPD's finding, with respect to the absence of photographs depicting the alleged damage to his home, given that the Appellant had indicated in his BOC form that these photographs were available. Likewise, the RAD concurs with the RPD's finding that in the absence of corroboration from the Appellant's wife with respect to the threat of incarceration, the veracity of these allegations is called into question. The RAD finds that this is significant as this is allegedly the reason the Appellant decided to leave Cuba. Discrimination versus Persecution [18] The RPD found that while the state authorities in Cuba might find the Appellant's views unfavourable, it concluded that he would not be considered sufficiently high profile so as to suffer significant harm from the state authorities as alleged. The RPD also considered the fact that the Appellant was not a member of any dissident organizations or political opposition movements. It noted that the Appellant's anti-government activities were limited to a refusal to join pro-government activities, downloading and redistributing some anti-government blogs and videos and speaking out against the government to friends, neighbours and work colleagues. [19] The RPD examined the evidence to consider if even cumulatively the harm the Appellant had suffered was tantamount to persecution. It noted the denial of certain employment opportunities, which included demotions and pay cuts. The RPD further noted that even if it accepted that the Appellant was threatened with arrest at one point and had rocks thrown at his home, when considering the overall situation in Cuba, this was not tantamount to persecution. In concluding this, the RPD considered that the Appellant was able to work, largely without interruption, since he completed his studies. Moreover, it noted that the Appellant was never deprived of education or residency. [20] The RPD found it even more compelling that the Appellant was able to obtain his own Cuban passport and visa without problems, and concluded that if considered a dissident, this would not have been achievable. [21] The RPD further noted that there is nothing in the documentary evidence to persuade it that citizens are persecuted simply for refusing to join the government's ruling party. It did acknowledge, however, that those individuals in support of the government continued to receive preferential treatment. The RPD also noted the Freedom House Report, however finds that the information contained in this report refers to individuals with certain profiles, for eg. political organizers, and as stated above, would not be applicable to the Appellant. [22] The Appellant submits that the RPD erred by dealing with the incidents sequentially and compartmentalizing them, despite describing its analysis as cumulative. It is argued that the RPD erred when finding that "it would be speculative to suggest that the situation would be any different should the Appellant return to Cuba now" even though the RPD accepted that the police had questioned, warned and threatened the Appellant because of his political beliefs. It is further argued that the RPD failed to assess the escalation of incidents, when considering the cumulative effect. [23] It is further submitted by the Appellant that when considering country conditions, the RPD restricted its analysis to the Appellant's refusal to join the Communist party, and therefore did not turn its mind to the expression of political opinions against the government as expressed by the Appellant. It is argued that the RPD accepted that the Appellant held a political opinion contrary to that of the Cuban government and that he expresses those views when afforded the opportunity. In stating this, it is argued that the RPD ignored the evidence that indicated that political dissent, whether spoken, written, or published was subject to smear campaigns, attacks, and arbitrary arrests for seemingly minor infractions. [24] It is submitted that the Appellant's own evidence is that he participated in an active manner in forums and social networks by divulging videos of the acts of repudiation done to families of those the government considered dissidents. Thirdly, the Appellant argues that in terms of travel documents, the objective evidence indicates that Cuba had relaxed its travel restrictions that prevented critics, even more "high profile" than the Appellant, from leaving and returning to Cuba. Lastly, the Appellant submits that the RPD did not address how someone with high-level internet access, when the GOVERNMENT of Cuba feared bloggers even more than other activists as early as 2009, would not suffer persecution. [25] Having reviewed the RPD record and the audio recording of the hearing, the RAD comes to the same conclusion as the RPD with respect to the cumulative effect of the acts of discrimination and harassment that the Appellant faced in Cuba. After reviewing the audio recording of the proceedings, the RAD finds that the RPD's comments in its Reasons with respect to the vagueness of the Appellant's political activities, is valid as the Appellant provided little detail in this regard. The RAD notes that all of the Appellant's activities were low profile. While the RAD accepts that the Appellant does not agree with the political agenda of the governing party, we do not find sufficient evidence that would lead us to conclude that the Appellant was a political activist who would be the target of the Cuban Government. [26] As stated above, the RPD had also taken into consideration the lack of profile of the Appellant when considering his political activities. The RAD concurs with the RPD that the Appellant has not provided sufficient persuasive evidence to demonstrate that his activities would have had such a significant impact so as to attract government retribution to the extent that the Appellant alleges. [27] With respect to the Appellant's comments regarding "high-level internet access", the RAD after reviewing the audio recording of the proceedings, did not find that even if we accept that the Appellant's internet access was "high-level", and we do not, the RAD does not find that the Appellant was "persecuted" as a consequence. [28] Persecution is not defined by the Convention. However, persecution can mean sustained or systematic violation of basic human rights demonstrating a failure of state protection.2 Case law has stated that to be considered persecution, the mistreatment suffered or anticipated must be serious3 and occur with repetition or exercise of that right might be affected. In other words, the legal question to be determined is: does the persecution alleged by the claimant threaten his or her basic human rights in a fundamental way.4 [29] The Federal Court of Appeal in the case of Saraguchi5 stated: It is true the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is for the Board to draw the conclusion in a practical, factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein. [30] Having conducted an independent assessment of the entire record, the RAD finds that the discrimination experienced by this Appellant does not threaten his fundamental rights but rather affects the quality of his existence in his home country. The RAD concurs with the RPD that after considering the evidence on a cumulative basis, the Appellant's allegations are of discrimination and not tantamount to persecution. The RAD also finds that, as a result, there is insufficient evidence to establish that the Appellant faces a serious possibility of persecution should he return to Cuba. [31] Accordingly, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. [32] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara September 08, 2015 Date 1 Huruglica Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. 2 James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) pp.104-105, cited with approval in Canada (Attorney General) v. Ward (1993) 3 F.C. 675 (C.A.). 3 Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R.398 (.F.C.A.). 4 Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593. 5Sagharichi v. Canada (Minister of Employment and Immigration) (1993) F.C.J. No. 796. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08090