IMMIGRATION AND REFUGEE BOARD
– REFUGEE PROTECTION DIVISION –
Record of a Hearing under the
Immigration and Refugee Protection Act, concerning
|HELD AT:||Toronto, Ontario|
|DAT1E:||January xx, 2016|
|BEFORE:||Ms. XX||– Member|
|Yuliya Dumanska||– Counsel for Claimant|
|J. Rodriguez||– Interpreter|
PRESIDING MEMBER: This is the decision of R.D.. Sir, I’ve considered your testimony and other evidence in this case and as I said I’m going to give you my decision now. I would like to add that in the even that written reasons are issued, a written form of these reasons may be edited for spelling, syntax and grammar and references to case law and documentary evidence may also be added.
Sir, you claim to be a citizen of Cuba and you are claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act. Your allegations are set out in your Basis of Claim form and in your testimony today.
Sir, you have alleged that as a [xxxx], you would face persecution should you return for having defected from your country… Sir, I’ve considered your testimony and’ find that you are a Convention refugee and my reasons are as follows.
Your identity as a national of Cuba has been established by the documentary evidence you submitted, primarily your passport found at Exhibit I. On a balance of probabilities I accept that you are who you say you are with regards to your national identity.
You stated that ……. you were given chaperones to ensure that you did not defect as your past behaviour had shown that you were not supportive of the revolution.
On these three trips, you did not find an opportunity to abscond. ‘accept this as credible and reasonable and therefore understand why you were not able to claim in these three countries.
With relation to your allegations of political persecution, I find that you testified in a straightforward manner, readily answering all questions posed to you.
I find that there were no material contradictions or omissions in your testimony and therefore’ believe what you have alleged in support of your claim.
I understand that as a XXXXXX, you are a national role model and therefore this is a requirement in your country. You stated that you refused to join, not necessarily because you disagreed with the political agenda or the policies of the revolutionary party, but because you are not a political person and do not want to be involved in politics in general.
The main problem for you was the coercion. You did not believe it was right to be forced to join a political party or engage in politics when you simply did not want to. As a result of this refusal, you were given a counsellor whose job it was to convince you to join to party.
I find this testimony to be credible and I find that this treatment is also supportive objectively by the documentation.
The current persecution faced by political opponents or dissenters, is well established in all the documents before the panel. The US Department of State report, Human Rights Watch, Amnesty International and other reputable sources in the documentation all describe a persecutory environment for those the government suspects of being counter revolutionaries.
The evidence notes many instances of harassment of persons who oppose the government. It also notes individuals being subjected to police brutality and intimidation when they do not adhere to the revolutionary policies such as attending meetings or joining the party.
The documentary evidence confirms that political dissent, whether spoken or written, as a punishable offense and that dissidents frequently receive years of imprisonment for even minor infractions. In light of this I find your allegations are corroborated by the objective evidence and I find that not wanting to join the political party and not wanting to attend meetings did result in you being banned from XXXXXXX.
You stated that you were allowed back on the XXXXX five years later. You stated that XXXXXXXX
The documentary evidence shows how they treat political dissidence and perhaps your treatment at this time was for selfish, nationalistic reasons. However, once in Canada, you did defect and made a refugee claim.
In view of your past dissidence and your current defection, you have alleged that you can never return to the country without facing a serious possibility of imprisonment. Again, the objective evidence on this matter supports your fear.
I will being by highlighting a section of the Criminal Code that I am familiar with. It’s Section 135 or Article 135 of the Criminal Code.
This article basically states that an official or an employee who, in the fulfilment of his duties in a foreign country, abandons those duties or completes – or sorry, or fails to complete these duties upon return to the country will incur a sentences of deprivation of liberty for three to eight years.
Based on that I find that there is a serious possibility that you could be detained and charged with this offense upon your return. The evidence that you provided, including your credible testimony today has shown that you were in Canada as a representative of the Cuban XXXXXXX.
I think that upon your return to the country, there is more than a mere possibility that this offense, which particularly addresses employees or officials on government duty or by being sponsored by the government, is applicable to you.
And therefore there is a good chance upon your return that you will face imprisonment. The evidence on file shows that the prison conditions in Cuba are far from ideal.
Although the law prohibits the abuse of detainees, there are credible reports that members of the security force have intimidated and physically assaulted detainees while in their custody, particularly those they regarded as political opponents.
Once again, I find that the documentary evidence supports your fear that upon your return you will face these forms of persecution.
Also in the documentation, it is replied that the conditions of prisons in Cuba are in and of themselves humanitarian concerns for Amnesty International, Human Rights Watch, the UN; they all have issued reports outlining the human rights abuses and the in humanitarian conditions of Cuban prisons.
So overall, I find that the evidence shows that Cuba is highly intolerant of any political, dissent and is known for committing human rights abuses against those they perceive as political threats based on the Section of the Criminal Code that I cited and what has been reported in the documentary evidence, I find that you would be regarded as a political opponent to the government just by defecting as a member of the XXXXXX.
Therefore I find that you would be associated with one of the individuals described in the literature.
I also find that as a failed asylum seeker you would be at risk should you return. The evidence in the National Documentation Package, which refers to failed refugee claimants, also reports on how they are treated – sorry, reports on how they are treated upon their return to Cuba.
While in evidence is mixed, some sources report that there is no regard for failed asylum seekers and they don’t face a risk upon return, however, there is other evidence that says that they do and that if it comes to the attention of the government that an individual has made a refugee claim, they are not only blacklisted and become targets of the government but they also run a risk of being imprisoned upon their return.
Once blacklisted, individuals have a hard time seeking employment and also experience other persecutory repercussions as a result.
Now given your profile as a water polo player for the XXXXXX, given that you have stated about your role as a role model for the country, the level of promoting and respect and everything else that goes into being a national role model and a XXXXXX, I find that you do have a high profile.
I find that should you return today, the government would know that you haven’t been XXXXXX in the last three months and I believe that there are people who are looking for you in Cuba.
You’ve stated that people have come to your mother’s house, that your XXXXXXX…
Based on this I do find it credible – or sorry I do find your evidence credible that the government is aware that you have left the country. Now the only thing I think that they could associate with your defection would be that you made a refugee claim.
Therefore, I find that its more likely than not that should you return, you would face the negative repercussions that are outlined in the documentary evidence.
So while the evidence may be mixed, I find that it is more likely that not that you would find yourself on the side of the evidence that suggests that you would be imprisoned, that you would be blacklisted, basically, as you stated earlier, you would be made an example to other people to prevent other XXXXXXX.
So all things considered, I find that should you return to Cuba, there would be more than a mere possibility that you would face persecution. I find your nexus to a Convention ground to be that of political opinion.
Although you have stated that you yourself are not a political person and do not want to engage in politics within your country, the reason you fall within the nexus of political opinion is because 35 your government perceives you of having a political opinion which is contrary to their own political opinion and therefore would persecute you as a result.
As such, your nexus is that of political opinion. I want to welcome you to Canada.
If you require a great objective consultation of an immigration or refugee lawyer, please contact Yuliya Dumanska at 647-724-3657.