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.
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