Categories
All Countries Cuba

2020 RLLR 121

Citation: 2020 RLLR 121
Tribunal: Refugee Protection Division
Date of Decision: March 18, 2020
Panel:
Counsel for the Claimant(s):
Country: Cuba
RPD Number: MB9-00025
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000019-000024

BY THE PANEL:

[1]       Your claim number is MB9-00025. You are claiming to be a citizen of Cuba, and you are making a refugee claim pursuant to Section 96 and sub-Section 97(1) of the Immigration and Refugee Protection Act. We call it the IRPA. So, because you are a minor, as we discussed during the hearing, you are 17 almost 18. [XXX] (phonetic), who is not a claimant has acted as your designated representative for these proceedings. So, because of your legal status as still being a minor, I have also considered and applied our Chairperson guideline three, which is on child refugee claimants, procedural and evidentiary issues.

DETERMINATION

[2]       So, my determination. For the reasons that follow, I find that you have established that there is a well-founded fear for yourself in Cuba… or a well-founded fear of persecution, sorry. So, this fear is based on your political opinions, which are against the government in your country of origin. I therefore find that you are a “Convention refugee” pursuant to Section 96 of the IRPA.

ALLEGATIONS

[3]       So, just to talk about your allegations, very briefly. Your detailed allegations are contained in your Basis of Claim form, which we also talked about today. So, you have written about and testified as well about the problems that you had had with your father, who has applied pressure on your to go into [XXX], and follow, sort of, in his footsteps, which you have made clear that you don’t wish to do. That’s not the path that you want to follow in your life. Your father is a member of [XXX]. You provided an identity card for his membership of the [XXX] in Cuba. This problem that you have with your father created further tensions because of your anti­government views in general, your political opinion.

[4]       You also told me about an incident that occurred when you were in school back in Cuba. You say that shortly after the death of Fidel Castro, you were shown a film which was very positive regarding him, and his family, and the government. And, you say you were overheard by your teacher in class discussing this and criticizing the family and the government with your friends. And so, you mentioned that your teacher threatened to send you to the principal’s office, and you spoke quite a bit about your fear of what that could lead to more long term. So, you were afraid that the police could get involved in that sense, and that things could become much more serious for you as a result.

[5]       You also have testified that you have been away from Cuba for quite some time at this point, I believe that’s it’s been about a year and a half, so you fear that this could raise suspicions about you because the government keeps track of the movements of its citizens. And, that people who spend a long time away are often political dissidents, and you fear that this could be something that highlights your presence to them as well. So, you have alleged that you fear being imprisoned or harmed by the State authorities if you were to return to Cuba.

ANALYSIS

IDENTITY

[6]       So, for my analysis, in terms of your identity, I find that your personal and national identity as a citizen of Cuba are established on a balance of probabilities by the documentary evidence on file, in particular a copy of your Cuban passport.

CREDIBILITY

[7]       In terms of your credibility, I found that your testimony was credible today. You testified spontaneously, without hesitation, you answered my questions directly and with lots of detail. There were no significant contradictions, no omissions, no inconsistencies in your testimony, or when compared with your narrative. I found you especially credible when you were talking about your difficult relationship with your father, based on these problems that you have had, your disagreements about your views in general, about the [XXX], about the government and those kinds of things. You testified that your father first started putting pressure on you at the end of your grade nine year in school, which would have been approximately three years ago. And, you spoke about this incident that took place in class. Also, I found you to be credible when you were talking about that. I found also your testimony about your fears of returning to be credible. And, even more convincing for me was your testimony about wanting to become a [XXX] or a [XXX]. So, you clearly stated to me that you could not return to Cuba and be silent about the things that happened there, about the way that your country is run. And, you even said that if you get to stay in Canada, you would like to continue to support those views about Cuba from afar.

[8]       So, when we have claimants come in and talk about feeling persecuted because of their political opinion, sometimes… or often times they have a lot of incidents to speak of. You are 17-years-old. You’ve been here for a year and a half. So, you were quite young when you left your country. I’ve taken that into consideration given that there weren’t a lot of incidents. But I still found that you had a lot to talk about. You had a lot to say about your political opinions. And again, the most important part for me is that you made it clear that you could not return to Cuba and keep silent, which would make you a target for the authorities. In terms of your evidence, you’ve submitted your father’s I.D. car as well as some photos of him in [XXX]. So, to conclude this part of the decision, I found that you are a credible witness. I believe the allegations that you’ve made in support of your claim today. So, based on your credible testimony and the documents that you’ve submitted, I accept what you have alleged to day and in your narrative. I believe that you have established on a balance of probabilities that you would be a target; you would be at risk of being targeted for your political opinions in Cuba.

OBJECTIVE BASIS

[9]       So, I took a look at objective evidence as well, and we have a package of information for each of the countries that we received claimants from. For the Cuban package, I find that the evidence is clear about how political opponents are treated in Cuba, and even perceived political opponents, how they are treated by the authorities. So, I’ll just talk about that a little bit. Item 2.1 of the report is the United States Department of State report, it talks about Cuba being an authoritarian State. It’s a one-party system, and the constitution recognizes the Communist party as the only legal party, and the highest political entity of the State. This government participates in unlawful and arbitrary killings, intimidation and physical assault of human rights and pro-democracy activists, political dissidents, other detainees and prisoners. And, they do this with impunity. So, they don’t receive any kind of… they don’t have to account for their actions essentially. The police use laws against public disorder, contempt, lack of respect, aggression, failure to pay minimal or arbitrary fines as ways to detain, threatened and arrest civil society activists. So, they have… they have a lot of things that they can use against… against people who are advocating against the government, basically.

[10]     There’s an Amnesty International report at section 4.3 of the NDP, that talks about President Obama’s visit in the year 2016. And, they refer to dozens of activists and independent journalists being detained including some members of Women in White, the organization that you spoke about, the wives and family members of people who are held in prison in Cuba. Human rights… A human rights organization that is not recognized by the government also reported 762 politically motivated and arbitrary detentions per month between 2014 and 2016. And, finally, the same report states that the Committee to Protect Journalists ranks Cuba tenth on the 2015 list of the world’s most censored countries, and it also classified Cuba’s laws on free speech and press freedom as the most restrictive in the Americas. So, that’s the objective evidence that I have. And, I find on a balance of probabilities there is an objective basis for your claim.

STATE PROTECTION

[11]     So, we have to look at State protection. But I find that you’re quite clear that the agent of persecution and who you fear is the State itself. So, we could not expect you to have access to adequate State protection in Cuba, because you have an anti-government viewpoint, and the objective basis… the objective evidence shows that the government targets individuals who oppose them. So, based on this evidence, I find that on a balance of probabilities adequate State protection would not be available to you if you were to return to Cuba.

INTERNAL FLIGHT ALTERNATIVE

[12]     And, finally, in deciding refugee claims, we have to look at whether or not you have what’s called an internal flight alternative. So, that means we have to look and see if there is another place in your country where you could be safe. I didn’t even ask you any questions about that today because again I think you’ve been very clear that you fear the State. The State controls the entire country. So, I find that it’s clear that on a balance of probabilities that there would be no safe place for you in Cuba. So, there is no safe internal flight alternative.

CONCLUSION

[13]     So, finally, based on the totality of all of this evidence, I conclude that you would face a serious possibility of persecution on the basis of your political opinion in Cuba. Therefore, I find you to be a “Convention refugee”. I am accepting your refugee claim under Section 96 of the IRPA.

Categories
All Countries Cuba

2020 RLLR 60

Citation: 2020 RLLR 60
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2020
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Gabriel Ukueku
Country: Cuba
RPD Number: VB9-01930
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000004-000007

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the claim of [XXX] as a citizen of Cuba who is claiming refugee protection pursuant to Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

Allegations

[2]       The claimant alleges persecution at the hands of the Cuban government due to his political opinion. The following is a brief synopsis of the allegations put forth by the claimant in his Basis of Claim form in Exhibit 2. He opposed changes to the Constitution in 2018 through consultations conducted by the local neighborhood CDR, which is the Commi-, Committee for Defense of Revolution. The claimant was confronted in his home by the CDR executives in [XXX] 2018 and accused of being anti-government. After a few days, he along with his family was questioned by two officers of the DSC which is the Department of Security. He felt he was being scrutinized and watched closely by his neighbors and was scared of being persecuted. The claimant traveled to Canada on a business trip in [XXX] 2019 and filed for protection.

ANALYSIS

Identity

[3]       The claimant’s identity as a national of Cuba is established by way a certified copy of his Cuban passport on file in Exhibit 1.

Nexus

[4]       In rendering this decision, the Panel has considered the claimant’s testimony and documentary evidental-, evidence on file. For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason one or more of the five grounds which are race, religion, nationality, membership in a particular social group, or political opinion. In this case, the evidence before the Panel is that the claimant is wanted by the Cuban authorities due to his opposition to some of the Constitutional changes affected in his country. The Panel finds, in this case, that the claimant has established a Nexus to a Convention ground, political opinion. Accordingly, the Panel has assessed this claim under Section 96 of the Act and not under Section 97.

Credibility

[5]       When a claimant swears to the truthfulness of certain facts, there is a presumption that what he or she is saying is true unless there are reasons to doubt it. Secondly, when assessing credibility, the Panel is entitled to rely on rationality and common sense. The determination as to whether a claimant’s evidence is credible is to be made on a balance of probabilities. At the hearing, the claimant’s testimony was direct, thoughtful, and earnest. He testified in a very detailed and forthright manner, there were no inconsistencies in his testimony, and he clearly identified the agent of harm as being the government of Cuba. The claimant made no attempts at embellishment. He explained the provisions of Articles 31 and 135 of the Cuban Constitution and why he opposed them. Article 31 deals with issues related to workers and their remuneration and Article 135 deals with the election of state officials such as governors. He asked for [XXX] and did not agree with how [XXX]. The claimant stated that when he-, when the changes were opposed and everyone was told that-, sorry-, the claimant stated when the changes were proposed and everyone was told that consultations were being held to seek citizens’ opinions, he thought that the government was being earnest in bringing about positive change in his country. However, when he was confronted by the executives of the CDR and then visited by DSC officers, who threatened him with being against the government of Cuba, he started to fear for his life. He was excluded from any further CDR meetings and his children were excluded from participating in sports and extracurricular activities at the school.

[6]       The claimant stated that he will be immediately arrested upon his return to Cuba for two reasons. His political opinion and abandonment of his training in Canada since he is an employee of the government of Cuba. He quoted Article 135 of the Cuban Constitution which states that any employee who abandons his mission in a foreign country and does not return to Cuba incurs a penalty of deprivation of liberty for three to eight years. The claimant provided an uncertified translated copy of this provision to the Panel during the hearing, which was then translated on record from Spanish to English. The Panel accepts this document and claimant’s argument as credible. The claimant has also provided testimonies from his family and a friend as to the events he faced prior to leaving Cuba. Based on the claimant’s consistent and forthright testimony and the corroborative evidence, the Panel finds him to be a credible witness and accepts his allegations to be true on a balance of probabilities.

Well-Founded Fear of Persecution and Risk of Harm

[7]       The United States Department of State as per NDP Item 2.1 states that Cuba is an authoritarian State. Human rights issues included reports of unlawful and ar-, arbitrary killing by police, torture of political dissents, detainees and prisoners by security forces, harsh and life-threatening prison conditions, arbitrary arrest and detention, holding of political prisoners, and arbitrary or unlawful interference with privacy. The law allows the maximum four-year preventative detention of individuals not charged with an actual crime with a subjective determination of pre-criminal dangerousness, defined as the special proclivity of a person to commit crimes, demonstrated by conduct in many first contradiction of so-, so-, of societal norms. Mostly used as a tool to control anti-social behaviors such as substance abuse or prostitution, authorities also used such a detention to silent peaceful political opponents. Multiple domestic human rights organizations published lists of persons they considered political prisoners. Individuals appearing on these lists remained imprisoned under the pre-criminal dangerousness provision of the law. The Ministry of Interior employed a system of informants and neighborhood committees, known as CDRs, to monitor government opponents and report on their activities.

[8]       Human Rights Watch as per NDP Item 2.4 states that the Cuban government continues to employ arbitrary detention to harass and intimidate critics, independent activists, political opponents, and others. Detention is often used pre-emptively to prevent people from participating in peaceful marches or meetings to discuss politics. Detainees are often beaten, threatened and held incommunicado for hours or days. Cubans who criticize the government continued to face the threat of criminal prosecution. They do not benefit from due process guarantees such as the right to fair and public hearings by a competent and impartial tribunal. In practice, codes are subordinate to the executive and legislative branches denying meaningful judicial independence. Freedom House, as per NDP Item 2.6, also reports that political parties other than the PCC are illegal in Cuba. Political defense is-, dis-, sorry-, political dissent is a punishable offense and dissidents are systematically harassed, detained, physically assaulted, and frequently imprisoned for minor infractions. As noted, the claimant has been questioned by the State authorities in Cuba due to his political disagreement over constitutional changes. He and his family were under watch by the neighbors through the neighborhood CDR. This was followed by questioning by executives of the CDR and officials of the DSC. He is now being constantly sought after in his country, the claimant fears persecution due to his political opinion. Based on the objective evidence as discussed, the Panel agrees that his fear of returning to Cuba is indeed well-founded.

State Protection and Internal Flight Alternative

[9]       State protection would not be forthcoming in this particular case as it is the State of Cuba that seeks to target the claimant. He has been threatened and questioned by the executive’s office CDR and the DSC officers. His family is being harassed and questioned about his whereabouts. The Panel finds that it would be objectively unreasonable in these circumstances for the claimant to have or to seek the protection of the very authorities that seek to persecute him. Since adequate state protection is not available to the claimant, the Panel finds that there is no internal flight alternative available to him, as the Cuban authorities are in control of the entire territory of the country.

Determination and Conclusion

[10]     For the foregoing reasons, the Panel finds that the claimant is a Convention refugee as per Section 97-, 96 of the Act and accepts his claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Cuba

2020 RLLR 49

Citation: 2020 RLLR 49
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2020
Panel: Miryam Molgat
Counsel for the Claimant(s): Kevin Rosales
Country: Cuba
RPD Number: VB9-01922
ATIP Number: A-2021-00655
ATIP Pages: 000128-000131


DECISION

[1]       MEMBER: The claimant claims to be a citizen of Cuba and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

Determination

[2]       The Panel finds that the claimant is a Convention refugee as the claimant does have a well-founded fear of persecution on a Convention ground in Cuba. Its reasons are as follows.

Allegations

[3]       The claimant’s complete allegations are set out in the Basis of Claim form and need not be repeated here in detail. To summarize briefly, the claimant is a man born in Cuba [XXX], he is from a place called [XXX]. His claim is based on his political opinion as a perceived “counter-revolutionary”, he has suffered at the hands of the Cuban government who threatened to throw him in jail. On one occasion an agent told him that if he wanted he could easily end up dead in a jail cell. The claimant believes the agent was implying he could easily have him killed, the claimant yearns for freedom of expression. He became known in high school for defending his classmates rights, he would refuse to join the [XXX] in the Spanish acronym. As a result, he was unable to study medicine simply because of his political opinion not his grades. He and his family complained without any result. After he finished his two-year compulsory military service he was denied training in fields of his interest, there was no reason provided for the refusal, he believes it was because of his perceived political opinion. In 2014, while working as a [XXX] he was questioned by the police for refusing to participate in regime celebrations linked to the Committee of Revolutionary Defense. Those who refuse to donate to the celebration were threatened with losing their jobs. While questioned by the police the claimant was punched in the face, he complained about it after he was released but there was no follow up by the authorities. After this, it became impossible for the climant-, the claimant to find a job, this was because he was marked as a counter­ revolutionary. He started working as a [XXX], he continued to have problems with the police. The claimant tried to leave Cuba illegally on [XXX] 2015 but was forced to paddle back to shore. His parents then received a visit by officials looking for boat parts, his parents complained to the authorities in vain. The claimant went to the town of Trinidad-,

[4]       INTERPRETER: (Inaudible) so just a moment.

[5]       MEMBER: No-, ok.

[6]       INTERPRETER: Nine

[7]       MEMBER: Ok just a minute because I haven’t read Paragraph 8 yet ok. So, I’m just-, I’ll try and speak more slowly so I’ll, I’ll say Paragraph 8 and then we can continue together.

[8]       INTERPRETER: Ok, I’ve just finished 8.

[9]       MEMBER: Ok.

[10]     MEMBER: So, the claimant went to the town of Trinidad Cuba where he worked as a [XXX], a few months later he started getting visits from people who knew about every single aspect of his file in [XXX]. They would ask him to work for them, he did not want to, he realized he could not be safe in Cuba. Ok, so, the claimant tried to leave Cuba illegally on [XXX] 2016, he and his friends bought a boat, they had to give up and return to land as the cheap engine seized. He was detained upon returning to Cuba but not jailed, police boss [XXX] was the presumed author of the police operation. In [XXX] 2017 the claimant started studying to be a [XXX], he also started studying [XXX] at university. Everything was fine for a year until he was contacted by [XXX] in [XXX] 2018, he wanted the claimant’s help in finding a robber. [XXX] said the claimant have a large police file, he warned him he would be jailed for five years if he failed to co-, cooperate. The claimant relented offering to help, he was so pressured he stopped going to university, he returned to [XXX] to his family. The claimant went to Havana where he took advantage of a Panamanian law allowing Cubans to travel there without a visa, he bought a ticket with his tips, he arrived in [XXX]. He immediately traveled to [XXX], once there, a man said he could help him get to Canada, at the airport the man handed him a passport. The claimant has relatives in Canada, the claimant’s cousin has also arrived in Canada, another cousin had to leave Cuba on account of his pro-LGBT activism. The claimant left Cuba on [XXX] 2019, in Cuba he still has his parents and siblings, his claim was referred in [XXX] 2019. The claimant also alleges fear of risk to his life, risk of torture or risk of cruel and unusual treatment or punishment of the hands of the same agent of harm. The claimant alleges that neither state protection or safe and reasonable internal flight alternatives are available in his country of nationality.

ANALYSIS

[11]     The main issue is credibility.

Identity

[12]     The claimant’s national identity has been established by the testimony and supporting documentation filed and entered in these proceedings. The current passport is on file along with other documents, the Panel is satisfied of the claimant’s identity.

Nexus

[13]     For the claimant to be a Convention refugee the fear of persecution must be by reason of one of the five grounds enumerated in the Convention refugee definition. In other words, the claimant must have a well­ founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. The Panel finds that the harm feared by the claimant is by reason of one of the five grounds enumerated in the Convention refugee definition, namely his political opinion opposed to the government of Cuba.

Credibility

 [14]    When credibility is assessed there are two principles that are followed. Firstly, when a claimant swears to the truthfulness of certain facts there is a presumption that what he is saying is true unless there is reason to doubt it. Secondly, when assessing credibility, the panel is entitled to rely on rationality and common sense. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities. The claimant was credible, his allegations do not run counter to generally known facts, his testimony was direct, it was consistent with his BOC allegations. His Exhibit 1 handwritten statement is consistent with his BOC allegations, he has supported his allegations with corroborating documents in counsel disclosure.

Subjective Fear

[15]     The claimant failed to make an asylum claim in Panama or Costa Rica, this is not determinative given that he is credible. He provided a reasonable explanation for his failure to make a claim in panama or Costa Rica, namely that he has family in Canada, he has no family in Panama or Costa Rica. His relationship with his uncle in Canada is established via the documents on file.

Similarly Situated persons and Objective Basis

[16]     The government of Cuba persecutes those they believe are in political opposition and represses political dissent. There are serious consequences for those who criticize the government or express views that are in opposition to the government. The US Department of State report, which is NDP Item 2.1 states the government of Cuba has little tolerance for political criticism of government officials or programs and limits public debate on issues that are considered to be politically sensitive. The US Department of State also discusses severe restrictions on freedom of association, assembly and freedom of speech. In the NDP Item 2.6 from Freedom House it says that, political dissent is a punishable offence and dissidents are systematically harassed, detained, physically assaulted and frequently imprisoned for minor infractions. NDP Item 2.4 states this, the government continues to use other repressive tactics including beatings, public shaming, travel restrictions and termination of employment against critics. The Panel finds that there is an objective basis for the targeting of the claimant by the authorities of Cuba.

State Protection

[17]     Claimant’s must show on a balance of probabilities that adequate state protection is not available. The issue before the Panel was whether it was objectively unreasonable for the claimant to have sought state protection. The objective country conditions evidence on Cuba demonstrate that there is no available state protection for the claimant in Cuba, the claimant fears the Cuban State itself. His experiences establish his past persecution by the State.

Internal Flight Alternative

[18]     There is no internal flight alternative if the claimant faces a serious possibility of persecution throughout Cuba, the Cuban authorities control their whole territory.

CONCLUSION

[19]     Having considered all of the evidence, the Panel determines that there is a serious possibility that the claimant would be persecuted in Cuba for one of the five grounds enumerated in the refugee Convention, namely, political opinion. Having come to this conclusion, the Panel has not conducted further assessment under Section 97(1) of the Act. The Panel concludes that the claimant is a Convention refugee and the Panel therefore accepts the claim.

———- REASONS CONCLUDED ———-