MB3-01373

N° de dossier de la SAR/RAD File No.: MB3-01373 Huis clos/Private Proceeding Reasons and Decision Appelant(e)(s) XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX Appellant(s) Appel instruit à Montréal, Québec Appeal considered / heard at Date de la décision August 12, 2013 Date of Decision Tribunal Me Diane Sokolyk Panel Conseil(s) du (de la/des) Appelant(e)(s) Me Mabel Fraser Counsel for the Appellant(s) Représentant(e)(s) désigné(e)(s) S/O Designated Representative(s) Conseil du (de la) Ministre S/O Counsel for the Minister REASONS AND DECISION [1] XXXXX XXXXX XXXXX XXXXX XXXXX, the principal claimant before the RPD, and her mother XXXXX XXXXX XXXXX, citizens of Cuba, appeal a decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] They have submitted new evidence in support of their appeal. I. DETERMINATION OF THE APPEAL Confirms RPD determination [3] Pursuant to ss. 111 (1) (a) of IRPA, the RAD confirms the determination of the RPD, namely, that XXXXX XXXXX XXXXX XXXXX XXXXX, and her mother XXXXX XXXXX XXXXX XXXXX, are neither "Convention refugees", pursuant to Section 96 of IRPA, nor are they "persons in need of protection" pursuant to Section 97 of Immigration and Refugee Protection Act (IRPA). II. BACKGROUND [4] The principal appellant alleged before the RPD that she would face persecution under section 96 and/or a risk to her life, a danger of torture or a risk of cruel and unusual punishment under Section 97 if she was to return to Cuba as a result of her political opinion. The principal appellant alleged that she worked for her municipality as the XXXXX XXXXX department at the XXXXX and XXXXX for almost XX years. She states in her Basis of Claim form (BOC) at question 2 (a) that although she refused to join the PCC, she was kept in the position because her work was well-done and there was no one else to do it. She claims that as a result of continuing to express her political opinion she was denied the right to acquire certain household appliances, and was delayed in having her children baptized until they were adults. [5] In XXXXX of 2006, the principal claimant stopped working at this job but transferred to another job within the municipality in the XXXXX XXXXX XXXXX. She worked for another year and then retired, receiving a pension. After her son left Cuba in 2009, she stopped paying the dues of the XXXXX. She was visited monthly by the local officials who would harass her and insult her. The record shows that she was issued a passport on XXXXX, 2012 and a visa to visit Canada on XXXXX 2012. She flew to Canada on XXXXX 2012. [6] She further alleged that her mother also suffered in watching the alleged harassment the principal claimant suffered when visited by members of the XXXXX and also during the time that the claimant's husband died in hospital. The principal appellant's mother was issued a passport on XXXXX, 2012 and a visa to visit Canada on XXXXX, 2012. Both appellants filed their claim for refugee status on January 29, 2013, shortly after Ms. XXXXX - XXXXX arrived in Canada on XXXXX, 2012. [7] The RPD determined that the appellants were not "Convention refugees" pursuant to Section 96 of the Immigration and Refugee Protection Act (IRPA), nor were they "persons in need of protection", pursuant to section 97(IRPA), for the following reasons. [8] The RPD found that the principal appellant had voiced a political opinion against the governing regime throughout her life, and did suffer consequential harassment, including being denied the opportunity to buy household appliances, being refused water maintenance service, receiving harassing visits from the XXXXX to pay dues and being refused the possibility of having her children baptised until they were adults. However, the RPD concluded that these instances of harassment, taken cumulatively did not amount to persecution, as she was not deprived of her basic rights. [9] The appellants submit that the RPD erred by concluding that the harassment suffered by the appellants did not amount to persecution. The appellants further submit that the RPD erred by concluding that the appellants did not show that their fundamental rights would be violated should they return to Cuba. [10] For these reasons, the appellants request that the RAD overturn the decision of the RPD and find that the appellants should be accepted as Convention Refugees. III. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [11] Subsection 110 (4) of IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] Furthermore, the Federal Court of Appeal in Raza, 2007 FCA 385, has provided guidance with respect to what is to be considered when determining whether the evidence constitutes new evidence in the context of PRRA. [13] Given that the provisions under PRRA and RAD are almost identical, this Tribunal is of the opinion that these legal principles are applicable to RAD. The Court in Raza suggests that if the applicant has established that the evidence was not available or could not have been presented to the RPD, the appeal Tribunal will need to consider this evidence and then go to assess its credibility, relevance, newness and materiality. [14] The following evidence was submitted by the subject of the appeal and had to meet, therefore, the above-noted tests in order to be admissible. ? Exhibit A-1: Resolution 38-26 dated XXXXX,2006; ? Exhibit A-2: Newspaper article dated September 24, 2009; ? Exhibit A-3: Print copy of internet video dated September 27, 2012. ? Exhibit A-4: E-mail exchange between principal appellant's daughter and her sister dated XXXXX, 2013 and scanned copy of undated summons from PNR police station in XXXXX. [15] I found that the following documents were not admissible. ? Exhibit A-1: Resolution 38-26 dated XXXXX,2006; ? Exhibit A-2: Newspaper article dated September 24, 2009; ? Exhibit A-3: Print copy of internet video dated September 27, 2012; ? Exhibit A-4: E-mail exchange between principal appellant's daughter and her sister dated XXXXX, 2013 and scanned copy of undated summons from PNR police station in XXXXX. [16] My reasons are as follows. Exhibit A-1: Resolution 38-26 dated XXXXX, 2006 [17] The principal appellant submitted that Exhibit A-1 should be admissible because given the time restrainsts and the fact that the appellant would not know what documents she would need to support her claim, she was only recently able to obtain it from Cuba.The principal appellant argues that this document is relevant because it goes to prove that she was denied the right to buy a household appliance. [18] I found that Exhibit A-1: Resolution 38-26 dated XXXXX, 2006 arose seven years before the rejection of the claim and the subject of the appeal could reasonably have been expected in the circumstances to have presented it at the time of the rejection, as this allegation formed part of her BOC. In any event, the document is not relevant for the appeal as the principal appellant was found credible on this point. Exhibit A-2: Newspaper article dated September 24, 2009 [19] The principal appellant submitted that this document is credible as it emanates from the Montreal Gazette,a reputable newspaper and that it is relevant because it establishes that a person can be punished in Cuba for saying that they are hungry. The principal appellant claims that her claim for protection would have succeeded if this document had been made available to the RPD. [20] I found that Exhibit A-2: Newspaper article dated September 24, 2009 arose before the rejection of the claim as it describes an event which took place six years prior to the claim, was sourced in Canada and would have been available to the principal appellant to submit at the time of her hearing before the RPD. Exhibit A-3: Print copy of internet video dated September 27, 2012 [21] This document was presented at the hearing for the RPD but was refused by the RPD as no copy was provided for the Tribunal and the member ruled that it was not necessary to complete the appellant's evidence. In other words, the member found that the appellant had already made her point using other proof. The principal appellant is re-submitting this document under rule 3(3)c. As the RPD considered this question and found the document superfluous to complete the appellant's evidence, on this point there is no need to further consider the evidence. Exhibit A-4: E-mail exchange between prinicpal appellant's daughter and her sister dated May 15, 2013 and scanned copy of undated summons from the PNR police station in XXXXX [22] The alleged summons from the police station is undated. There is no way to evaluate whether or not it was available to the appellant prior to the RPD hearing. The appellant alleges that her sister received the document on XXXXX, 2013 and the e-mail from the principal appellant's sister is dated XXXXX, 2013. This suggests that the principal appellant could not reasonably have been expected in the circumstances to have brought these documents before the RPD. If I accept that this document was not available until XXXXX, 2013, under Raza, I must then consider the credibility relevance, newness and materiality of this proof. [23] When the appellants submitted the copy of e-mail and the alleged police summons at a later date, they argued that this document establishes that the appellant was being harassed by the CDR. [24] I find that this document is admissible under 110(4) because it appears that the principal appellant was forwarded this material by her daughter in Cuba after the rejection of her claim. It therefore meets the criteria identified in Section 110 (4) of IRPA. I must then consider the factors in Raza. I note that there is no date on the police summons which reduces its credibility as to when it actually was prepared and if it is a reliable document. Furthermore, the exchange of e-mails filed relates a casual and friendly conversation and not one which would suggest any alarm or concern. The document therefore does not meet the test of credibility found in Raza. [25] In addition, even if I were to find this document credible, which I do not, according to the appellant's arguments on page 25, the document is submitted to establish that the appellants were harassed by the XXXXX. The RPD addressed this issue and found that the appellant was indeed harassed by the XXXXX but that this harassment did not amount to persecution. I find therefore that the RPD considered this matter and reached their decision in a reasonable and appropriate manner and this document is unnecessary to complete the appellant's proof. IV. ANALYSIS OF THE MERITS OF THE APPEAL [26] The principal appellant has raised two issues: ? Issue 1: The Tribunal erred by deciding that the harassment suffered was not persecution ? Issue 2: The Tribunal erred by deciding that the appellants did not show that there was a serious possibility that their fundamental rights would be violated. [27] I will address each issue in turn: Issue 1: The Tribunal erred by deciding that the harassment suffered by the appellants was not persecution [28] The principal appellant argues that the definition of persecution in statute and in case law could include the incidents experienced by the appellants. [29] This is an issue of mixed fact and law. According to the Supreme Court of Canada in Dunsmuir v. New Brunswick 2008 SCC 9 at paragraph 51, the standard of review applicable to matters of fact and law is the standard of reasonableness. In paragraph 54 of Dunsmuir, the Court states that "deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity." Furthermore, the Court states in paragraph 47 that a reasonableness review involves recognition that certain decisions do not lend themselves to one specific result; a tribunal has a margin of appreciation within the range of acceptable and rational solutions. Reviews for reasonableness do not involve reweighing the evidence Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12. [30] I note that the RPD heard the evidence and found the appellants credible. No new evidence was admitted on appeal on this issue. I find that as the RPD considered whether all of the factors raised by the appellants were equivalent or not to persecution, the decision of the RPD was reached in a reasonable and appropriate manner. The RPD decision was justified, transparent and intelligible (Dunsmuir v. New Brunswick, 2008 SCC 9). In their decision, the RPD member stated that he considered the issue of having the principal appellant's children baptised, the issue of the appellant's quitting her job with the municipality, the denial of television and household appliances, and the visits by the XXXXX. The Appeal Division does not offer an opportunity for a de novo hearing. I therefore confirm the decision of the RPD on this issue. Issue 2: The Tribunal erred by deciding that the appellants did not show that there was a serious possibility that their fundamental rights would be violated [31] The appellants did not make any specific arguments with respect to the second issue they identified in the initial appeal record. This is an issue of mixed fact and law and the standard of reasonableness should apply. I find on this matter that as the RPD considered specifically whether there was a serious possibility that their fundamental rights would be violated, and as this test is recognized by the Supreme Court of Canada in Chan v. M.E.I. [1995] 3 S.C.R. 593 at p. 635, the decision of the RPD was reached in a reasonable and appropriate manner. V. REMEDIES [32] For all these reasons, I confirm the determination of the RPD, namely, that XXXXX XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX XXXXX are neither "Convention refugees" nor are they "persons in need of protection". [33] The appeal is dismissed. Diane Sokolyk Me Diane Sokolyk August 12, 2013 Date /ag/ajh REFUGEE APPEAL DIVISION / CLAIMANT'S APPEAL / POLITICAL OPINION / NEW EVIDENCE / HARASSMENT / HUMAN RIGHTS VIOLATION / FEMALES / CONFIRM THE DETERMINATION / CUBA 1 RAD.25.02 (April 9, 2013) Disponible en français N° de dossier de la SAR/RAD File No.: MB3-01373 9