Date: 20040406
Docket: IMM-3913-03
Citation: 2004 FC 536
Calgary, Alberta, this 6th day of April, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
HECTOR ABRAHAM CESAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Hector Cesar is a Cuban citizen and Soviet trained geologist. He claims that the spirit of "perestroika" he experienced in the U.S.S.R. led him into conflict with the Cuban regime and to seek refuge first in the United States and latterly in Canada. His arrival in this country was precipitated by the reduction, if not elimination, of his prospects for permanent residency in the U.S. by reason of a criminal conviction related to people smuggling. He seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board") that determined that the Mr. Cesar was not a Convention refugee or a person in need of protection.
BACKGROUND
[2] The applicant entered the United States at Miami illegally in July 1996 and subsequently applied for permanent residence in the United States, under the "Cuban Adjustment Act". In April 2002 he learned that his application had been refused because he had been convicted of a criminal offence ("accessory after the fact") for his role in transporting illegal immigrants from Mexico into the United States in April 1998. That role, according to the evidence, was to transport the migrants from one location in Arizona near the border to another. He also encountered difficulties with his application by reason of having crossed into Mexico contrary to the terms of his residency status in the U.S.
[3] The applicant came to Canada on November 12, 2002 and made his claim for Convention refugee status that same day. The applicant did not disclose that he had been convicted of the April 1998 offence at the port of entry, nor in the first Personal Information Form ("PIF") he submitted. An amended PIF was submitted with that information after he had obtained legal advice some months later.
[4] Mr. Cesar returned to Cuba in 1990 following five years of post graduate education in Kazakhstan. The applicant says that he wanted reforms to occur in Cuba similar to those he had observed developing in the former U.S.S.R. He claims that his problems in Cuba began when he refused to attend his local Revolution Defence Committee ("CDR") meeting. Such meetings were compulsory and the CDR apparently was a means for the state to have people inform on others in their neighbourhood. He was summoned to the police station and warned about expressing his views in public.
[5] The applicant says that he began putting up anti-government posters and writing anti-government messages on the walls of buildings at night. In February 1991 he was questioned at his workplace about his political beliefs and in 1992 he was fired from his job because of his perceived anti-government views. In March 1994 he says he was advised to leave the country by a police official and considered it, since there was an exodus of people leaving Cuba at that time. However, he claims that he did not leave then because of his mother's ill health.
[6] On April 3, 1996 the applicant claims that he was spotted putting up anti-government posters and was arrested by police. He was detained for 15 days, during which time he was verbally and physically abused. He was released and then later told that he had to remain in Havana and report once a week at the police station. The applicant at this point decided that he had to leave the country. He met with a man who had a boat that could get him to the United States and he left Cuba in July 1996.
[7] In 1997, while the applicant was living in the United States, he applied for a Cuban passport. He also applied for two extensions of this passport, in 1999 and 2001. Such extensions would have permitted him to enter Cuba. He updated his passport with the hope that at some point in the future, he would be able to return to Cuba to visit his daughter. The applicant claims that he was not afraid of applying for a passport while living in the United States because he felt that he was safe in the United States and the Cuban authorities could not hurt him there.
The Board's Decision
[8] The Board found that the applicant did not have a well-founded fear of persecution in Cuba because it did not find his allegations of arrest and harassment by the Cuban police and government to be credible. The Board found Mr. Cesar's explanation for not leaving Cuba until July 1996 to be unreasonable, and that this delay in leaving Cuba undermined the credibility of his other allegations of persecution.
[9] Secondly, the Board found that the applicant's conduct in contacting Cuban government officials in order to obtain renewed passports, after having fled Cuba, also undermined his credibility, as did the applicant's testimony that he wanted to return to Cuba at some point to visit his daughter. The Board did not find the applicant's claim credible that he was on a police list of wanted political dissidents in Cuba and that the police were still interested in arresting him in light of his behaviour in contacting Cuban government officials for his passport renewals.
[10] The Board relied on documentary evidence that indicated that Cuban emigrants who are not considered dissidents and who are not subject to criminal proceedings may apply to Cuban consulates for 2-year, renewable, multiple-entry travel authorizations. In light of such evidence, the Board found it implausible that Mr. Cesar could obtain two extensions on his Cuban passport without difficulty if the government had accused him of dissident political activities and was aware that he had departed Cuba illegally in 1996.
[11] Third, the Board also found it implausible that the applicant's sister had been granted two exist visas from Cuba to travel to Germany, as documentary evidence indicated that it was Cuban government policy to delay exit visa applications of close relatives of those who had successfully made asylum claims in other countries and those who had departed Cuba illegally.
[12] Fourth, the Board also found the applicant's explanation for not informing the immigration officer at the Canadian border about his conviction in the United States to be unreasonable because he was well educated and had lived and been employed in the U.S. for a number of years. The Board found it implausible that Mr. Cesar would believe that Canadian immigration officials would prevent him from entering Canada to make a refugee claim if he had told them of his U.S. conviction. The Board also found it unreasonable that the applicant did not disclose his conviction in the United States in his original Personal Information Form ("PIF") narrative, filed December 16, 2002, and the fact that he did not disclose his conviction until "15 months later", on March 15, 2003, further undermined his credibility.
[13] Moreover, the Board noted that it found the nature of the offence for which the applicant was convicted to be a serious one and his failure to disclose it had a serious and negative impact on his overall credibility.
ISSUE
[14] Did the Board commit any reviewable error in making its adverse findings of credibility?
POSITIONS OF THE PARTIES AND ANALYSIS
[15] The applicant raised four points in arguing that the Board had made reviewable errors: 1) the finding that he had not provided a reasonable explanation for his delay in leaving Cuba was patently unreasonable; 2) the finding in relation to his application and receipt of extensions to his Cuban passport was contrary to the documentary evidence; 3) the Board's reasons ignore evidence supporting the claim and 4) the Board made a clear factual error about the lapse of time before the amended PIF was submitted.
[16] On the first point, the applicant says that the Board gave no reason for using the 1991-1992 time period as the time-frame from which any period of "delay" would be measured, instead of using the date of the most serious and harmful incident, April 1996 when he was arrested and beaten, as the date from which it would be plausible that he would attempt to leave Cuba. The applicant says that when this date is evaluated as the one which sparked his flight from Cuba, there was only a delay of two months, rather than the four year delay that was cited by the Board. Furthermore, the applicant argues that the Board gave no reason as to why the applicant's explanation for not leaving earlier, that is his concern over his mother's health, was not viewed as a credible or reasonable explanation for his decision not to leave Cuba in 1992 or 1994.
[17] The respondent submits that the Board properly considered the issue of delay and that its inferences were reasonably open to it. Substantial deference ought to be accorded to the Board's findings of credibility and the Board provided a clear and detailed analysis of the reasons for its adverse credibility findings.
[18] Credibility findings of the Board are to be reviewed on the standard of patent unreasonableness: Horvath v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 901 (T.D.)(QL). However, reasons for disbelieving an applicant must also be set out in clear and unmistakable terms: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.). In this case, the incident which threatened the applicant's liberty and security of person was his arrest, detainment and physical mistreatment in 1996. The behaviour of the state, as alleged by Mr. Cesar, had not reached this level until April 1996. The Board failed to recognize this in determining that Mr. Cesar's delay in leaving Cuba undermined his credibility. Furthermore, the Board dismissed the applicant's explanation, that he could not leave in 1994 due to his mother's ill health, as not reasonable, without any explanation for this finding. While this finding may have been open to the Board, the Board failed to articulate in clear terms why it found the applicant's explanation "unreasonable".
[19] In respect to the Board's finding that the applicant's contact with Cuban officials in applying for two extensions to his passport undermined his credibility, the applicant submits that his actions in this regard do not demonstrate a lack of fear of Cuban authorities because he testified that he did not have concerns that the Cuban authorities could reach him while living in the United States. The applicant says that he testified that he did not intend to return to Cuba and that his application for renewal was done without thought to the legal ramification of such act.
[20] The respondent argues that the Board did not err in finding that the applicant's actions in applying for renewals to his Cuban passport undermined his credibility. The respondent refers to an inconsistency in the applicant's evidence, namely that he claims in his affidavit that he obtained the extensions in order to return to Cuba to see his daughter at some point in the future, however, in his argument he maintains that he did not intend to return to Cuba.
[21] The Board, in fact, noted that the applicant had testified that he had a daughter in Cuba and that he wanted to go to see her at some point in the future. However, when questioned as to whether he intended to go back to Cuba, he testified that did not so intend. While it could be viewed as very natural for a claimant to desire to see loved ones in a country from which they have fled due to alleged persecution, I cannot say that the Board capriciously made factual conclusions on this point. The Board's implausibility and credibility findings are to be accorded a high degree of deference and unless it is shown that the Board's inferences and conclusions are so unreasonable that they could not have been drawn, or the Board appears to have drawn them without regard to the evidence, this Court should not interfere, whether or not it agrees with those inferences: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), Oduro v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 106.
[22] The applicant next argues that the Board misconstrued documentary evidence, in particular a 2001 Cuba Bulletin entitled, "Exit Visas and Legal Emigration", which it relied upon to determine that he was not a political dissident because he was able to obtain his passport renewals. The applicant says that this documentary source in fact indicates that political dissidents can obtain multi-entry visas and that a 1999 policy against such issuance does not appear to have been implemented. The applicant also submits that the Board erred in not separately considering the documentary evidence which indicated that he would be harmed by the Cuban authorities because he illegally departed Cuba, even though the Board did not accept that he had, in fact, departed illegally. Such finding was made without any evidence before the Board that he had left Cuba on a legally obtained exit visa.
[23] The respondent argues that the Board is assumed to have weighed and considered all evidence before it, unless the contrary is shown: Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.)(QL) and Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). However, where there is probative evidence contradictory to the Board's own findings on a relevant and important issue to the claim, and this is not mentioned by the Board, an apprehension is raised that the Board failed to consider it.
[24] In my opinion, it is obvious from the face of the record that the Board's reasons do not demonstrate a full and accurate account of this documentary evidence. In dealing with this issue, therefore, the Board made factual findings unsupported by the evidence before it. The Cuba Bulletin, relied on by the Board on this issue, indicates at section 2.29 that the Cuban authorities since 1995 have allowed emigrants who are "held to be political dissidents" or those who have criminal records the opportunity to have renewable, two year multi-entry entrance visas. This report then states that while there was a 1999 declaration that illegal migrants from Cuba since 1994 are to be regarded as "deserters of Cuba" and to be viewed as having renounced their Cuban citizenship, the U.S. State Department has not found that such policy has been implemented by the Cuban authorities.
[25] This evidence directly contradicts the Board's findings at pages 4-5 of its reasons. By not addressing this conflict in the documentary evidence, which relates to a central aspect of the applicant's claim, namely that his ability to obtain such 2-year renewals on his passport is not proof that he is not a political dissident in Cuba, a reasonable apprehension is raised that the Board did not consider such evidence: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35. The Board here appears to have selectively relied upon pieces of this documentary report in support of its reasoning, however, the report, in its full form, raises doubts about the Board's ultimate finding on this issue.
[26] The Board also erred in determining that the amendment to the applicant's PIF was made 15 months after his original PIF was received by the Board in December 2002. In fact, such amendment was made in March 2003, after a period of only three months. The respondent argues that this factual error does not rise to the level of a reviewable error as this was only one factor of many that the Board found undermined the applicant's credibility.
[27] I agree with the respondent that this error must be evaluated in the context of the entire decision and that such error would not, in itself, justify interfering with the Board's decision. However, in light of my findings, I believe that this error in cumulation with the two other problems above indicate that a "reviewable" error was made by the Board.
[28] The applicant submitted five letters from friends and family which detailed his political activities and problems in Cuba and supported his evidence that he left Cuba illegally. Relying on Cepeda-Gutierrez, supra, the applicant submits that while the Board does not have to mention every piece of evidence in its reasons, relevant and important documentary evidence which contradicts the Board's own findings and supports an applicant's claims, should be mentioned in its reasons and an explanation given for rejecting such evidence.
[29] The respondent argues that the fact that the Board did not specifically mention certain evidence does not lead to a finding that the Board failed to consider such evidence. The applicant's letters from his family are self-serving and it was open to the Board to prefer the independent, documentary evidence before it.
[30] In my view, the applicant has not demonstrated that the Board's failure to mention the letters he submitted from his family and friends leads to a finding that the Board ignored this evidence. These letters only repeated the applicant's allegations concerning his political activities and his departure from Cuba, and were, to a degree, self-serving, as they were from friends and family members. The letters did not offer different evidence than that already supplied by the applicant and were not so important or in contradiction to the Board's own conclusions, that the Board's failure to address them in the reasons raises an apprehension that the decision was based on factual findings made without regard to the evidence before it: Cepeda-Gutierrez, supra.
[31] In light of the analysis above, this judicial review is allowed. No question for certification arises.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed, the decision of the Board is set aside and this matter is sent back for reconsideration by a different panel of the Board, in accordance with these reasons. No question is certified.
"Richard G. Mosley"
J. F. C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3913-03
STYLE OF CAUSE: Hector Abraham Cesarv. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: April 6, 2004
REASONS FOR ORDER AND ORDER : MOSLEY, J.
DATED: April 6, 2004
APPEARANCES:
Ms. Tina McKay FOR APPLICANT
Ms. Carrie Sharpe FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Tina McKay
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT